THE OURNAL of the Kansas Bar Association JJuly/August 2008 • Volume 77• No. 7 www.ksbar.org

KBA President Thomas E. Wright & his Predecessor Linda S. Parks

ESI Comes to the K.S.A.: Kansas Adopts Federal Civil Procedure Rules on Electronic Discovery Let Your Voice be Heard!

2008-2009 KBA Officers and Board of Governors President: KDJA Representative: Teresa L. Watson Thomas E. Wright Hon. Meryl D. Wilson (785) 232-7761 Topeka (785) 271-3166 Topeka (785) 537-6372 Manhattan [email protected] [email protected] [email protected] District 6: President-elect: District 1: Gabrielle M. Thompson Timothy M. O’Brien Eric G. Kraft (785) 539-3336 Manhattan (913) 551-5734 Kansas City, Kan. (913) 498-3536 Overland Park [email protected] Tim_O’[email protected] [email protected] District 7: Vice President: Kip A. Kubin Matthew C. Hesse Glenn R. Braun (816) 531-8188 Kansas City, Mo. (316) 858-4924 Wichita (785) 625-6919 Hays [email protected] [email protected] [email protected] Samuel P. Logan Laura L. Ice Secretary-Treasurer: (913) 498-2100 Overland Park (316) 660-1258 Wichita Hon. Benjamin L. Burgess [email protected] [email protected] (316) 660-5607 Wichita [email protected] Lee M. Smithyman Rachael K. Pirner (913) 661-9800 Overland Park (316) 630-8100 Wichita Executive Director: [email protected] [email protected] Jeffrey J. Alderman (785) 234-5696 Topeka District 2: District 8: [email protected] Paul T. Davis Gerald L. Green (785) 843-7674 Lawrence (620) 662-0537 Hutchinson Immediate Past President: [email protected] [email protected] Linda S. Parks (316) 265-7741 Wichita Gerald R. Kuckelman District 9: [email protected] (913) 367-2008 Atchison Hon. Kim R. Schroeder [email protected] (620) 428-6500 Hugoton KBA Delegate to ABA: [email protected] Sara S. Beezley District 3: (620) 724-4111 Girard Dennis D. Depew District 10: [email protected] (620) 325-2626 Neodesha Vacant [email protected] Kansas Delegate to ABA: District 11: Thomas A. Hamill District 4: Nancy Morales Gonzalez (913) 491-5500 Overland Park William E. Muret (816) 474-6550 Kansas City, Mo. [email protected] (620) 221-7200 Winfield [email protected] [email protected] ABA Delegate at Large: District 12: Hon. Christel E. Marquardt District 5: Christopher J. Masoner (785) 296-6146 Topeka Martha J. Coffman (816) 983-8264 Kansas City, Mo. [email protected] (785) 271-3105 Topeka [email protected] [email protected] Young Lawyers Section President: Scott M. Hill (316) 265-7741 Wichita [email protected] THE OURNAL of the Kansas Bar Association JJuly/August 2008 • Volume 77 • No. 7 www.ksbar.org

ITEMS OF INTEREST REGULAR FEATURES 4 President’s Message 5 KBA Board of Governors Vacancy 5 Young Lawyers Section News 11 KBA Honors 18 Individuals for District 10 Seat 7 Law Students’ Corner and Pro Se Task Force for 8 Members in the News Their Service to the Legal 9 Dan’s Cartoon Profession and Community Milestones 10 Obituaries 19 25 Law Practice Management Tips & Tricks 36 Appellate Decisions 45 Appellate Practice Reminders 22 Rule of Law Conference Held at 53 Classifieds Kansas History Center 55 CLE Docket

21 KBF Recognizes Fellows 26 Thinking Ethics Cover photo by Ryan Purcell and Kansas Legal Legend Initial Interviews with Prospec- tive Clients: How to Prevent Conflicts of Interets

27 2008 Annual Meeting Task Force and Sponsors Now 1/2 Off LRS Enrollment Fee! 27 2008 Annual Meeting Sports Report www.ksbar.org 30 ESI Comes to the K.S.A.: Kansas Adopts Federal Civil Procedure Rules on 28 A Few Memories from 2008 Electronic Discovery Annual Meeting By J. Nick Badgerow

Our Mission: The Journal Board of Editors The Kansas Bar Association is dedicated to advancing the professionalism and legal Director of Bar Services: skills of lawyers, providing services to its members, serving the community through Susan McKaskle advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice. Catherine A. Walter, Chair Topeka Casey Law McPherson The Journal of the Kansas Bar Association is published monthly with combined issues for Anne L. Baker Topeka Michelle Reinert Mahieu Dodge City July/August and November/December for a total of 10 issues a year. Periodical Postage Hon. Monti L. Belot Wichita Hon. Tom Malone Topeka Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Terri Savely Bezek Topeka Julene Miller Topeka Bar Association (ISSN 0022-8486) is published by the Kansas Bar Association, 1200 S.W. Harrison, P.O. Box 1037, Topeka, KS 66601-1037; Phone: (785) 234-5696; Fax: Boyd Byers Wichita Hon. Lawton R. Nuss Topeka (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Hon. Jerry Elliott Topeka Prof. John Peck Lake Quivira Nonmember subscription rate is $45 a year. POSTMASTER: Send address changes to J. Lyn Entrikin Goering Topeka Richard D. Ralls Kansas City, Mo. The Journal of the Kansas Bar Association, P.O. Box 1037, Topeka, KS 66601-1037. Connie Hamilton Topeka Richard H. Seaton Manhattan The Kansas Bar Association and the members of the Board of Editors assume no Mark D. Hinderks Overland Park Richard D. Smith Topeka responsibility for any opinion or statement of fact in the substantive legal articles Evan Ice Lawrence Marty M. Snyder Topeka published in The Journal of the Kansas Bar Association. Katharine J. Jackson Manhattan Diane S. Worth Wichita For advertising information contact Suzanne Green at (800) 211-1344 or e-mail Michael T. Jilka Overland Park 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. Catherine A. Walter, Board of Editors chairperson, [email protected] COPYRIGHT 2008 Kansas Bar Association, Topeka, Kan. Susan McKaskle, director of bar services, [email protected] From the President Thomas E. “Tom” Wright Influence is a Key to Success

efore launching into my first column, a brief introduction board and our membership to assure that the strength and in- seems appropriate. So, hello, my name is Tom Wright. fluence of our collective voice is heard. To this end, we need to My wife and fellow life traveler for many years is Carole. restructure the way we do certain things, managing and utiliz- BWe have two children, Leslie and Doug. Leslie and her husband, ing our resources more effectively, providing a greater amount Bill, live in Kansas City with their two children, Thomas and of time to deal with serious issues. We can then restructure how Elise, with another due to arrive very soon. Doug and his wife, we communicate our message. Christy, live in Scottsdale, Ariz., with their son, Jacob. God bless I know that at a minimum we need to consider the following: them all for being self-sustaining and gainfully employed. (1) We must change the BOG meetings to an electronic After spending many years in that sideshow called “fee for ser- format. We can save more than $1,000 a year by sending our vice” law, I now work for the Kansas Corporation Commission. meeting material electronically. That also gets the information Yes, a bureaucrat. And that work is really meaningful work. But out two days earlier. We will not spend more than 30 minutes it is now much clearer to me just how brutally hard the pri- on routine reports, leaving us a block of time to discuss real vate practice of law was and is. Solving other people’s problems issues and policies. The result will be the better use of board doesn’t always make it easy to solve our own — like making members time and most likely a more engaged board. a living. As the new president of the Kansas Bar Association (2) Board minutes for the prior five years will be available at (KBA) I promise to make it all better. I’m kidding of course. meetings electronically. These records will be searchable. Many The best we can do is to provide you the service you deserve. past meetings bogged down in discussions of whether we took My predecessors directed their efforts to important issues certain actions for certain reasons five years earlier. If proposed such as discrimination, poverty, injustice, and access to justice. action is inconsistent with prior decisions we will be able to The focus was on others and for that we honor them. However, find that out quickly. we now need to take a little time to focus on ourselves. We need (3) We will consider legislative issues several weeks earlier in to assure we are fulfilling our mission, including our ability to the year. This additional time makes it possible to schedule face carry our message and influence others. to face meetings with legislators before they are booked solid. The Executive Committee of the Board of Governors (BOG) We have already scheduled a legislative conference for Oct. 15, for 2008-2009 met in Kansas City for a brainstorming/ 2008, which will feature our lawyer legislators and should draw strategic planning retreat prior to the June KBA annual a large crowd. We have commitments from Rep. Mike O’Neil, convention. chair of the House Judiciary Committee, and Sen. John Vratil, At the top of the discussion list was “influence.” How much chair of the Senate Judiciary Committee. We also already have influence does the KBA have? Is the level of influence sufficient? commitments from other lawyer legislators. The resounding opinion was, whatever degree of influence the (4) We will establish an accurate grassroots e-mail system for KBA currently enjoys, we could certainly use more. legislative issues. Our goal will be to promptly communicate We looked at what we, as an association of legal professionals, with legislators. The Oct. 15 meeting will jump start our list of want to accomplish and who and what institutions do we need those interested in legislative issues. With those attendees and influence with in order to achieve our objectives. We identified the BOG we will have a good start. I remember what Whitney the government, the Legislature, and the media as core groups Damron, KBA contract lobbyist, told me, “three timely e-mails that we must work with in a cooperative manner to gain and will get the attention of most legislators.” increase our level of influence. (5) We will thoroughly review the advantages and disadvan- We discussed what influence other professional associations tages of a Political Action Committee (PAC). A PAC will be have or don’t have. Do we have as much influence, as say, the formed if it is the will of the BOG. It will be limited in funding Kansas bankers, accountants, or dentists? Do other lawyer as- and scope. By contributing to each of the major political par- sociations have more influence than the KBA? ties PACs and the house and senate PACs we will be a part of Why do some people and groups have more influence than the action. others? Wikipedia says there are five types of influence: peer (6) We will explore ways to join forces with the other bar as- pressure, charisma, reputation, connections, and the Bully sociations in the state to see if we can multiply our efforts. Pulpit. (Don’t even think about joking here.) The fact is that Those with influence have the ability to take their message with 7,000 educated members we can garner as much influence to a wider public. They can raise sufficient funds to influence with the government, Legislature, media, and the public as we the Legislature. They can marshal support for their position desire. on issues. They are sought out by others. People know what We are in for some difficult discussions concerning things we they stand for and stand against. We need to make sure we are consider very important. Number one is the independence of among those with influence. n our courts. We seriously need to more fully engage our Tom Wright can be reached by e-mail at [email protected] or by phone at (785) 271-3166. 4 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Young Lawyers Section News Have you Hugged a Young Lawyer Today? KBA Board of Governors By Scott M. Hill, Hite, Fanning & Honeyman LLP, Wichita, Vacancy for District 10 Seat KBA Young Lawyers Section president

y charge over the next year as the author of this Young A vacancy now exists for the District 10 repre- Lawyers Section column is to provide direction, edu- sentative on the KBA Board of Governors as the cation, or other enlightenment to the junior attor- district’s former representative, Glenn Braun, has Mneys of our bar. If I follow that charge to a “T,” I should only been elected and installed as KBA Vice President. be writing to our younger members and anyone more than 35 years of age should just turn the page (I say that only figura- tively; stick with me). District 10 represents the counties of Chey- But before I reach out directly to the young lawyers, I want enne, Decatur, Ellis, Gove, Graham, Jewell, to take this opportunity to direct questions and comments to Logan, Mitchell, Norton, Osborne, Phillips, Raw- the senior bar. You might ask how lins, Rooks, Russell, Sheridan, Sherman, Smith, addressing older attorneys provides Thomas, Trego, and Wallace. direction, education, and/or en- lightenment to young lawyers? A The vacancy shall be filled by appointment, thus, wise man once said, “Give a man a candidates need only to indicate their interest fish, and you have fed him for to- day. Teach his mentor to fish, and and send a current résumé to the KBA Executive you fed him for a lifetime.” Maybe Director as noted below. that is not exactly how the quota- tion goes, but the point is we can The Board of Governors (BOG) is the governing significantly impact the young law- body of the Association and is vested with over- yer by first reminding the senior seeing all business and management activities of Scott M. Hill members of a thing or two. the organization. Board members are asked to at- So I begin with a question: Have tend five meeting per year at their own expense. you hugged a young lawyer today? We have all heard the ex- pression, “have you hugged your child today,” meaning that Meetings are held at various locations across the parents need to show physical affection to children to nurture state and are usually held on a Friday during the both physical and emotional development. But how does this months of February, April, June, September/ translate to the practice of law? I hypothesize — no better yet I October, and December. BOG members are also promise — through professional affection, you can nurture the asked to attend several related dinners and other development of our young lawyers. functions as necessary. All dinners are paid for by How might you show professional affection? Here is my as- the KBA. signment to you: Make a conscious choice to positively im- pact the professional development of a young lawyer. For those of you who already believe you do, I ask you to reaffirm your This appointment would be the completion choice. And to help all of you in that process, I offer the follow- of a three-year term ending in June 2009. The ing suggestions: successful candidate will be eligible to serve two • Be present. We all know to be there when the young law- additional three-year terms. Candidates must yer has her first trial or his first contract closing. But we often maintain their principal place of practice or reside forget that even a small motion hearing or a client meeting can in the district they shall represent. require some support and encouragement. If you are present in the professional life of your mentee, you will quickly learn what is important. Start by being there for an impromptu lunch every Interested members should forward a current couple of months. From there, follow-up every couple weeks résumé to KBA Executive Director Jeffrey with a casual conversation about how things are going. And Alderman via e-mail at [email protected] or never underestimate the value of an open door. Simply taking by mail to 1200 Harrison St., Topeka, KS 66612. the time to be present (especially when the clock is not running) Questions can be directed to Alderman by calling is a huge step in showing professional affection. (785) 234-5696. • Be positive. Being present is certainly one step, but your attitude in your conversations is quite another. Be positive. The deadline to apply is 5 p.m. on Friday, Aug. One of the most tried and true ways to encourage successful growth is through positive reinforcement. I state the obvious: 29, 2008. (Continued on Page 9)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 5

Law Students’ Corner From Harlem to Topeka: Following the Yellow Brick Road to Law School By Samantha Tirado, Washburn University School of Law ou’ll never amount to anything.” My mother’s happy. I decided to apply to law school again. I had never words cut through me like a freshly sharpened heard of Washburn Law before, but when I received a gener- knife. I was 16, a straight-A student, and had never ous scholarship, I knew it was worth visiting. I attended a “Ybeen in any trouble. I am the eldest of three children, raised barbecue for admitted students and immediately fell in love. mostly by my Puerto Rican grandmother while my mother I saw the close-knit community and met several students who worked menial jobs to pay the bills. My father was always in also had families. Some were even single mothers just like me! and out of the house and was notorious for his gambling ad- Although I was a Hispanic single mom, I felt like I could fit diction and struggle with alcoholism. Looking back, I realize in and make something of my life there. Choosing to attend that my mother’s self-hatred is what caused her to treat me Washburn Law is one of the best decisions I have ever made. that way. I knew then that if I ever had children, I would be a I will never forget introducing myself to my legal writing different type of parent. professor, Charlene Smith, and classmates. I told them that I My opportunity to heal the wounds of my past came with had a little boy and had recently moved to Kansas from New the birth of my son, just months after having turned down a York. Smith opened her eyes wide and asked, “Does your full ride to law school. Despite an impressive GPA from a top son live with you here?” When I said yes, she replied, “Wow, university, I became a single parent, was nearly evicted, and you’re a brave girl.” I had never thought of myself as brave; I went on public assistance. Born and raised in Spanish Har- was just a young mother determined to beat the odds stacked lem, I was no stranger to poverty and the social ills of grow- against me. I ended up receiving the highest grade in the class ing up in an economically disadvantaged neighborhood, but on our first assignment, and I recently received an A on my I was determined to break the vicious cycle. I did not want to trial brief. be another statistic and I was not going to prove my mother Attending law school while raising my son has proved to right. I would amount to something. One way or another, I be a great challenge. Still, it is a manageable feat. I often read was going to pick up the pieces of my seemingly shattered life my son excerpts from my Constitutional Law textbook to put and get out of 126th Street. him to sleep. It usually works. Aidan understands that “when I became an administrative assistant at a cross-cultural ad- mommy is a lawyer,” we will have a nice house and a puppy. vertising agency in downtown New York City. My salary was He is my strength and the greatest support system ever. He next to nothing, but I soon developed the confidence and often tells me, “Mommy, you need to study so you can get skills-set needed to move further up the corporate ladder. My an A, not an F!” He is ahead of his classmates in his pre- son, Aidan, became my strength. My education continued to kindergarten class. He is compassionate, loving, and happy. I pave the way to more promising job opportunities. But I was like to think that I have something to do with that. just getting started. Despite an adverse upbringing, I have been blessed with In November 2006, I received a phone call from my cousin, many opportunities. Just the other day, I was honored with an who lived at Fort Riley with her husband and two children. amazing scholarship for nontraditional female students. This I had visited her before and envied her peaceful and tranquil summer, I am clerking at a law firm in Kansas City. The jour- lifestyle. I wanted to have fewer worries and shop at Wal-Mart ney has been a long one and I have only just begun. But one too. We didn’t have one of those in Harlem. My cousin said thing is for sure: There is absolutely no place like home — the she was getting divorced and asked me to move in with her. home that I have created for Aidan and me — in Kansas. n She said we could be “single moms” together. With $1,000 in savings and a burning desire to give my son a better life, I About the Author packed up our belongings and moved to Kansas. All I could think about was that I would never again have to worry about Samantha Tirado is a second-year shoot outs, unleashed pitbulls, or having someone’s smelly law student at Washburn University armpit in my face during rush hour on the subway. One School of Law, currently working toward month later, I had learned to drive and had a job in manage- her certificate in business and transac- ment at a local call center. Then my cousin remarried and tional law. She is clerking at Spencer moved to Fort Hood, Texas. Fane Britt & Browne LLP this summer. I had always felt alone in New York, but now I was literally Tirado earned a Bachelor of Arts in po- alone — with a 3-year-old. Strangely enough, I felt feverishly litical science from Syracuse University.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 7 Members in the News CHANGING POSITIONS Neely L. Fedde has joined the U.S. District David W. Hauber has been appointed as a Eric J. Aufdengarten and Timothy J. Court for the District of Kansas, Kan- Johnson County District judge by Gov. Riemann have joined the Office of the sas City, Kan., as a law clerk for Hon. Kathleen Sebelius. Kansas Attorney General, Topeka, and Kathryn H. Vratil and a public outreach Jennifer Hays has joined Valentine & Thomas E. Beall has joined the office as coordinator. Zimmerman P.A., Topeka, as an associate. chief deputy. Jason J. Fletes has been named a partner Paul R. Hoferer has been named vice Jennifer H. Barrett has joined Long Luder with Hill, Beam-Ward, Kruse, Wilson & president and general counsel for Burl- & Gordon P.A., Overland Park. Wright LLC, Overland Park. ington Northern Sante Fe Railway, Forth Michael L. Belancio has joined Graves, Frankie J. Forbes has been named a Worth, Texas. Bartle & Marcus LLC, Kansas City, Mo. shareholder of Holbrook & Osborn P.A., Jane C. Holt has joined the Kansas Gov- James R. Biles has joined Sloan, Eisen- Overland Park. ernmental Ethics Commission, Topeka. barth, Glassman, McEntire & Jarboe Lance J. Formwalt has joined Sonnen- Christopher A. Holzman has joined LLC, Topeka. schein Nath & Rosenthal LLP, Kansas Maughan & Maughan L.C., Wichita. Alison K. Brookins has been named as a City, Mo., as of counsel. Thomas H. Johnson has joined Petefish, judge for the Wichita office of Disability Clinton M. Goos has joined Morris, La- Immel, Heeb & Hird LLP, Lawrence. Adjudication and Review. ing, Evans, Brock & Kennedy Chtd., Peggy C. Kittel has been appointed Doug- Michael C. Brown has been appointed city Wichita. las County District Court judge by Gov. attorney for the city of Conway Springs. Jason T. Gray has joined Duncan, Wein- Kathleen Sebelius. Michael E. Callahan and Michael P. berg, Genzer & Pembroke P.C., Washing- John J. Knoll has joined the City of Over- Winkler have joined Stinson Morrison ton, D.C., as an associate. land Park Attorney’s Office. Hecker LLP, Kansas City, Mo., and Carolyn Y.Y. Grayson is now with New- Roger W. Lampson has been appointed Megan E. Garrett has joined the firm’s man, Reynolds & Riffel P.A., Leawood. chief judge of the 29th Judicial District, Wichita office. Leslie A. Greathouse has joined Spencer Kansas City, Kan. Tyler A. Darnell has joined Arthur-Green Fane Britt & Browne LLP, Kansas City, Jonah W. Lock has joined the Quitmeier LLP, Manhattan, as an associate. Mo. Martsching Law Firm, Prairie Village. Wendee Elliott-Clement has joined South Matthew P. Harlow has joined Embarq, Jeremy G. Mai has joined Kansas Legal & Associates P.C., Overland Park. Overland Park. Services, Kansas City, Kan. Ryan D. Farley has joined Hinkle Elkouri Michelle D. Haskins has joined Con- Kevin D. Mason has joined White Goss Law Firm LLC, Wichita. stangy, Brooks & Smith, Kansas City, Bowers March Schulte & Weisenfels P.C., Mo., as a partner and Megan K. Wala- Kansas City, Mo. wender has also joined the firm.

8 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Members in the News William H. Meyer has joined the Jones CHANGING LOCATIONS Bradley G. Korell has moved to 2525 S. Law Firm P.A., Overland Park. Account Recovery Specialists Inc. has Lamar Blvd., Ste. 12, Austin, TX 78704. Michael L. North has joined the Sedgwick moved to 3505 N. Topeka, Wichita, KS Kramer & Hand LLC has moved to 712 County Counselor’s Office, Wichita. 67219. Maple St., Hillsboro, MO 63050. Kathryn O’Shea has joined Schmitt Manz Barnett Law Firm Chtd. has moved to 816 R. Michael Latimer has started his own Swanson & Mulhern P.C., Overland Ann Ave., Kansas City, KS 66101. firm, R. Michael Latimer, Attorney At Park. The Bass Family Law Firm Inc. has Law, 11011 King St., Ste. 237, Overland William H. Pitsenberger has become of moved to 8014 State Line Rd., Ste. 100, Park, KS 66210. counsel with Newbery, Ungerer & Hick- Leawood, KS 66208. Tiana McElroy and Richard A. Medley ert LLP, Topeka. Boysen McEachen P.A. has moved to 9401 have moved to 121 W. 8th St., Cof- Jenny R. Redix has joined the Henning Nall Ave., Ste. 100, Overland Park, KS feyville, KS 67337. Law Firm P.C., Kansas City, Mo., as an 66207. The Law Offices of Marcia L. Montgom- associate. The Law Office of James E. Carpenter ery P.A. has moved to Corporate Woods, Calvin D. Rider has joined Brown Dengler P.A. has moved to 816 Ann Ave., Kansas Bldg. 11, 10875 Benson, Ste. 120, Over- Bood & Rider L.C., Wichita, as of City, KS 66101. land Park, KS 66210. counsel. Chad B. Cook has started his own firm, Robert I. Nicholson Jr. has started his own Todd Rohr has joined Counsel Group Cook Law Group LLC, 13795 S. Mur- firm, Nicholson Law Office L.C., 26 W. LLC, Kansas City, Mo. Len Rd., Ste. 203, Olathe, KS 66062. Peoria, P.O. Box 407, Paola, KS 66071. Jeffrey D. Rowe joined Horn Aylward & Dickson and Pope P.A. has moved to Jill D. Olsen has started her own firm, the Bandy LLC, Kansas City, Mo. 11115 Ash St., Leawood, KS 66211. Olsen Law Firm LLC, 1044 Main St., Kathleen A. Ryan has joined H&R Block, Entz, Entz & Laskowski LLC has moved Ste. 400, Kansas City, MO 64105. Kansas City, Mo. to 6342 S.W. 21st St., Ste. 101, P.O. Box Peterson Law Offices LLC has moved to Melissa D. Rutton has joined the City of 67026, Topeka, KS 66615. 8400 W. 110th St., Ste. 450, Overland Overland Park as an assistant prosecuting Rebekah L. Gaston has started her own Park, KS 66210. attorney. firm, Gaston Law Office, 157 S. 7th St., The Law Office of Smith Coonrod has Mindy D. Smith has joined the Office of Salina, KS 67401. moved to 7001 W. 79th St., Overland the Chapter 13 Trustee, Kansas City, Mo. Carl W. Hartley and Sandra K. Hartley Park, KS 66204. Sidney R. Thomas has joined St. Francis have started their own firms, Carl W. Southeast Kansas Legal Associates P.A. Community Service, Garden City. Hartley LLC and Sandra K. Hartley has moved to 104 W. 8th St., Coffeyville, Timothy W. Triplett has joined Black & LLC. The firms are located at 16206 W. KS 67337. Veatch, Overland Park. 319th St., Paola, KS 66701. Jeffrey L. Stowell new address is P.O. Box Jennifer B. Wieland has joined Berkowitz Jeremy M. Houck has started his own 11182, Denver, CO 80211. Oliver Williams Shaw & Eisenbrandt firm, Law Office of J. Morgan Houck LLP, Kansas City, Mo. LLC, 1525 S.W. Topeka Blvd., Ste. D, Editor’s note: It is the policy of The Journal Amy E. Wilbur has joined General Topeka, KS 66610. of the Kansas Bar Association to include only Dynamics Armament and Technical Gregory D. Keith has started his own firm, persons who are members of the Kansas Bar As- Products, Charlotte, N.C. P.O. Box 20838, Wichita, KS 67208. sociation in its Members in the News section. Young Lawyers Section News Have you Hugged a Young Lawyer Today? (Continued from Page 5) Young lawyers respond to encouraging words, praise, and grati- • Be real. Sincerity in praise is key. If you are the nonpraising tude. While meaningful positive critique often takes more time type (you know who you are — and that is OK), this isn’t to say and effort than a short negative one, being positive — even if it that you should try to force yourself to exude admiration. The is a positive spin on a shortcoming — is worth the added time last thing that a young lawyer needs is to feel belittled. Be hon- and effort. A young lawyer who is reassured in her skills is going est and be real. Don’t go out of your way to praise every little ac- to try harder to continue to please you. This confidence will pay complishment. It often appears condescending or sarcastic. In off to you in the long-run in terms of loyalty and dedication to other words, be positive and be present, but don’t over do it. the task at hand. So maybe hugging would not be appropriate in your work- • Be consistent. Positive feedback and presence should occur place (I’m certainly not promoting office physical affection). more often than the yearly evaluation. Like any other learned Maybe hugging is just not your style. There are, however, other behavior, success can be achieved through repetition. When ways to show this professional affection. Be present. Be posi- something is done well, let the young lawyer know. When tive. Be consistent. Be real. At the very least, try a pat on the something falls below your expectation, be consistent in your back once in a while when it is deserving. Or even an “atta girl/ criticism (albeit with a positive message). Having consistency in boy” or just a “good job.” Anyway you want to do it, reach out your feedback allows the young lawyer to modify his behavior and hug a young lawyer. They will thank you for it, both today to meet your expectations. But more importantly, consistency and in years to come. n shows that you are focused enough on his development to re- Scott Hill may be reached at (316) 265-7741 or by e-mail at member and reinforce your expectations. [email protected]. THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 9 Obituaries

John K. Bremyer versity of Missouri in Columbia, and later graduated from the John K. Bremyer, 88, McPherson, died April 17. He was University of Kansas School of Law in 1952. born in McPherson on April 5, 1920, attended McPherson She taught business at Winchester High School and Jef- public schools and the University of Kansas. Bremyer left ferson County North High School in Winchester. She later KU Law School during World War II to join the Navy. He practiced law in Oskaloosa with her husband at the Swoyer & returned from the service and finished his law degree at the Swoyer Law Firm until November 2006. She and her husband University of Kansas. also owned and operated County Seat Variety Store in Oska- Bremyer returned to his hometown of McPherson and be- loosa from 1981 to 2003. She was a member of the Daugh- gan practicing law in 1946. He co-founded the Bremyer & ters of the American Revolution, the Oskaloosa Chapter of Wise law firm with Robert W. Wise in 1970 and practiced the Order of the Eastern Star, the Kansas National Education law for more than 60 years before taking an of counsel role Association, and was a lifetime member of the Kansas Bar with the firm. Association. Outside the law, Bremyer was involved in many entrepre- Survivors include a son, Karl, Winchester; two brothers, neurial projects and business ventures. He served on the ex- Harry A. Truman and Gilbert Truman, both of Louisburg; ecutive committee of the McPherson Bank & Trust and on four grandchildren; and one great-grandchild. She was pre- the board of directors of Pioneer Savings and Loan, becoming ceded in death by her husband, James F. Swoyer Jr.; her par- president after his father’s death. In 1959, he and other com- ents; two brothers, J.C. and Fred Truman; and a sister, Callie munity leaders founded the McPherson Industrial Develop- Truman. n ment Co. to diversify the local economy. He was a steadfast supporter of the University of Kansas and its law school. He believed in the virtues of small town living and championed the town of McPherson and its quality of life at every opportunity. Bremyer is survived by his wife, Jayne; sons, Jay and Jeff; daughter, Jill; grandchildren; and great-grandchildren. Robert C. “Bob” Martindell Robert C. “Bob” Martindell, 86, died May 31 in Hutchinson. He was born May 4, 1922, the son of Donald C. and Edith Brown Martindell. A graduate of Hutchinson High School in 1940, he received his undergraduate and law degrees from the University of Kansas. Martindell began practicing law with his father in 1949 and later became a partner in the firm. In 2004 he retired from the Martindell, Swearer & Shaffer Law Firm. Martindell was a member of the Junior Chamber of Com- merce, serving as the state vice president; Hutchinson Reno Masonic Lodge No. 124 AF and AM; served as an officer and state commander in the Knights Templar Lodge; a member and past director of the Hutchinson Rotary Club; a member of the American Legion Lysle Rishel Post No. 68; and was a lifetime member of the Kansas Bar Association. He served three years in the Army with the 394th Infantry Regiment and fought in the Battle of the Bulge. Survivors include his wife, Irene Lanphier, Hutchinson; sons, Steven, Richardson, Texas, and Stan, Topeka; daugh- ters, Cynthia Wiens, San Antonio, and Sandra Lonnecker, Poway, Calif.; sister, June Scott, North Fort Meyers, Fla.; four grandchildren; and two great-grandchildren. He was preceded in death by two brothers, William “Bill” and John Richard “Dick” Martindell. Martha Ann Truman Swoyer Martha Ann Truman Swoyer, 89, died April 30 in Oska- loosa. She was born Jan. 31, 1919, in Hickman Hills, Mo., the daughter of John Vivan and Louella Campbell Truman, and the niece of Harry S. Truman. Swoyer graduated from Lindenwood University, St. Charles, Mo., attended the Uni-

10 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION KBA Honors 18 Individuals and Pro Se Task Force for Their Service to the Legal Profession and Community

Phil Lewis Medal Of Distinction

The Phil Lewis Medal of Distinction recognizes individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others. Justice Fred N. Six served the state of Kansas for nearly two lawyer and a very compassionate person. He spends a sub- decades in a judicial capacity before his retirement in 2003. stantial amount of his time, and has throughout his career, on Attorney General Stephen Six said, “Dad what is sometimes referred to as pro bono is known across the state for his integrity activity. He has been involved in the cul- and high ethical standards and has been a tural life of the community and many ac- great role model for me as an attorney. He tivities at the university, and the museum. has worked tirelessly to promote our legal He really is just a remarkable person.” system and support the Kansas system of Six graduated from the University of merit selection of judges.” Kansas with a Bachelor of Arts in history On Sept. 2, 1988, the Topeka Capital- in 1951 and with a Juris Doctor in 1956, Journal quoted former Gov. Mike Hayden and in 1990, he graduated from the Uni- saying Six brought “to the court a keen intel- versity of Virginia with a master’s degree lect, an immeasurable sense of fairness, high of the judicial process. After his gradua- integrity, a distinguished legal career, and an tion from law school, Six was admitted impeccable record of service throughout the to practice law in New York and became legal community.” Six’s dedication to jus- an associate with the law firm of Reid and tice and his integrity were hallmarks of his Priest before returning to Kansas in 1957 career. to serve as an assistant attorney general. A According to former clerk Richard Cram, year later, Six joined the law firm of Asher Six demonstrated fairness in his approach Justice Fred N. Six and Ellsworth and became a partner be- to each case he heard, and he was careful in fore leaving in 1961 to become an associ- crafting his opinions while keeping them as brief as possible, ate with the Richard A. Barber law firm, now known as Barber even though he had thoroughly researched each legal issue, Emerson L.C. In 1974, he served as a special commissioner because he knew that his opinions would be published for for the Kansas Supreme Court. Six worked for Barber Emer- generations of lawyers to read. son until 1987 when he was appointed to the Kansas Court The Lawrence Journal-World quoted Six’s former law part- of Appeals. One year later, he was appointed to the Kansas ner Richard Barber on Aug. 23, 1987, after his appointment Supreme Court. Justice Six retired from the Kansas Supreme to the Kansas Court of Appeals. Barber called Six “a scholarly Court in 2003. (Continued on next page)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 11 Distinguished Service Award

The Distinguished Service Award recognizes an individual for continuous long standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. Gloria Farha Flentje has continuously served both her vention Center, the Wichita State University (WSU) Women’s profession and community since the beginning of her legal Studies Community Council, WSU Student Athletes Schol- career. According to the Wichita Women Attorneys Asso- arship Organization, and Music Theatre of Wichita. ciation, Flentje has enriched her profession, Flentje is the senior vice president of cor- her city, and her state by spending count- porate administration and human resources less hours serving various bar and profes- for Spirit AeroSystems in Wichita. She previ- sional organizations over the last three ously worked as chief legal counsel for Boeing decades. Commercial Airlines for five years, and prior Flentje has served as president of the Wich- to joining Boeing, she was a partner in the ita Bar Association and as president of the Wichita law firm of Foulston Siefkin LLP. Board of Trustees of the Kansas Bar Foun- Flentje graduated from the University of dation. She currently serves on the Kansas Kansas with a Bachelor of Arts in mathemat- Commission on Judicial Performance and ics and international relations and she received is a member of the American, Kansas, and her Juris Doctor from Southern Illinois Uni- Wichita bar associations and the Wichita versity. She has received a number of recogni- Women Attorneys Association. tions from her profession and the community, Flentje is also an active member of the including the Wichita Women Attorneys’ Wichita community. She currently serves on Louise Mattox Award, the Wichita Bar As- the board of The United Way of the Plains. sociation’s Howard C. Kline Award, and the Previously, she served on the boards of the Gloria Farha Flentje YWCA’s Woman of Vision Award, and she Wichita Area Girl Scout Council, Music also was selected by the Wichita Business Theater for Young People, Wichita Children’s Museum, Arts Journal in 2004 as one of 20 Wichita Women in Business. Partners, Harry Hynes Memorial Hospice, The Regional Pre-

Professionalism Award

The Professionalism Award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession as identified by the KBA Hallmarks of Professionalism. Calvin J. Karlin has been a managing member of Barber Kansas Law Review and is a chapter author in the KBA’s Estate Emerson L.C. in Lawrence since 2005 and has been with the Administration Handbook. firm since 1977. He specializes in estate planning, trust and Since 2003, Karlin has been a member of the Kansas Board estate litigations, and creditor rights. Karlin for Discipline of Attorneys and has been a earned his bachelor’s degree in political sci- member of the American College of Trust ence from the University of Kansas in 1974 and Estate Counsel since 1999 and serves as and his juris doctorate from KU’s law school its Kansas construction and interpretation re- in 1977, where he was the note and com- porter. He is a member of the American and ment editor for the Kansas Law Review and a Douglas County bar associations and is a past member of the Order of the Coif. director and president of the Douglas County A member of the Kansas Bar Association Bar Association, where he helped to organize since 1977, Karlin has served on the execu- its Young Lawyers Section and chaired its tive committee of the Real Estate, Probate, Ethics Committee. and Trust Law Section since 1998 and has Karlin’s community involvement includes been the author of the probate and trust por- having served as drive chair and president of tion and editor of the section’s newsletter the United Way of Douglas County; served since 2002. He is also a member of the Cor- on the board of directors of Leadership Law- poration, Banking and Business; and Bank- rence, the Lawrence Chamber of Commerce, ruptcy and Insolvency Law sections he previ- Calvin J. Karlin and the Lawrence Public Library; served two ously served on the Fee Dispute Resolution terms as president of Site Council for Law- and Professional Ethics Grievance committees. He has been rence Free State High School and received the Public Schools published in the Journal of the Kansas Bar Association and the Friends of Education Award.

12 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Outstanding Service Awards

The Outstanding Service Awards are given for the purpose of recognizing lawyers and judges for service to the legal profession and/or the KBA and to recognize nonlawyers for especially meritorious deeds or service that significantly advance the administration of justice or the goals of the legal profession and/or the KBA.

Margann M. Bennett spent the last 12 years in merito- authored the “Adult Care Homes” chapter of the Kansas Bar rious service to her profession and the Kansas Bar Associa- Association’s Long-Term Care Handbook. She is a frequent tion, according to her former supervising attorney Mary Beth speaker at community and continu- Blake. Bennett serves as a mentor and teacher to those around ing legal education events, speaking her and encourages other attorneys to be active in the bar on the topics of Medicaid, patient’s association. rights, ethics, and estate planning. Bennett is the director of profes- Janssen is a member of the Kansas sional development at Washburn Bar Association Elder Law Section, University School of Law, advising the Johnson County Bar Association, law students and alumni on career the Kansas Women Attorneys Asso- options, job search strategies, and ciation, the National Academy of the making the transition to professional Elder Law Attorneys, and is an officer employment. Bennett also coordi- in the Kansas Chapter of the Nation- nates continuing legal education pro- Stacey Janssen al Academy of Elder Law Attorneys. grams for the law school and is an ac- Janssen received both her Bachelor of Arts in 1985 and her tive member of the KBA Continuing Juris Doctor in 1988 from the University of Kansas. Margann M. Bennett Legal Education Committee. Prior to joining Washburn, Bennett practiced at Hershberg- C. Stanley Nelson enjoys being “of counsel” with Hamp- er, Patterson, Jones & Roth in Wichita and at Shook Hardy ton & Royce L.C. in Salina. At 83, he considers it a privilege & Bacon in Overland Park and Kansas City, Mo. Bennett also to be able to go to the office every day and be involved in served as a corporate account manager with Thomson-West legal matters. According to Matthew D. Keenan of Shook, (Westlaw) from June 2001 to early 2003. Bennett graduated Hardy & Bacon, who nominated Nelson, he is “a model of from the University of Kansas with a Bachelor of Arts in 1991 solid character.” and a Juris Doctor in 1996. Nelson has worked for the same firm since he started the practice of law in February 1951. He earned his undergradu- Natalie G. Haag currently serves as the second vice presi- ate and law degrees at the University of Kansas, but served dent, director of governmental affairs, and assistant general three years in the Marine Corps in counsel for Security Benefit Corp. between obtaining his degrees. He in Topeka. Prior to joining Security attended his first Kansas Bar Asso- Benefit, Haag served as the chief of ciation Annual Meeting 57 years ago, staff, director of governmental affairs, and he was responsible for maintain- and general counsel to former Kansas ing the firm’s hospitality room from Gov. Bill Graves. morning till night. Haag has also served as executive Nelson’s main area of practice has director of the Board of Indigents’ been in civil litigation, but he also de- Defense Services and as director of voted considerable time with work- the State Gaming Agency. She was a ers’ compensation claims. In 1978, prosecutor for four years and spent C. Stanley Nelson Nelson was inducted into the Ameri- Natalie G. Haag six years working for law firms han- can College of Trial Lawyers and he was recently appointed dling insurance defense litigation. to serve as special administrative law judge by the director of She earned her Juris Doctor from Washburn University Workers’ Compensation. He also worked as board member School of Law in 1985 and a Bachelor of Science in agricul- and/or president of various community service organizations, ture from Kansas State University in 1982. including the Salina Recreation Department, the Salina Pub- lic Library, and the Salina YMCA. Stacey Janssen has spent her career helping to protect the rights of the elderly and disabled. She is a sole practitioner Nancy A. Ogle, Wichita, has a solo practice where she fo- in Johnson County, practicing in the areas of elder and dis- cuses on providing legal research and writing services to other ability law. Prior to entering private practice, Janssen worked attorneys while also managing her own cases, primarily ap- for Kansas Legal Services, providing legal services to Kansas peals. Ogle is also an adjunct professor at Friends University, seniors. She also co-founded the Kansas Elder Law Hotline. where she teaches courses on legal research and writing. Janssen has served as an intern supervisor and guest lec- turer for the University of Kansas Elder Law Clinic and co- (Continued on next page)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 13 Ogle has been a member of the Kansas Bar Association for Steven A. Schwarm litigates, teaches, and writes extensively several years and currently serves on its Continuing Legal Edu- in the area of legal ethics and administrative law with an em- cation Committee. In addition, she is a member of the Wich- phasis on health care licensing, regulatory, and compliance ita Bar Association (WBA), Kansas matters. He is a frequent ethics presenter for the Kansas Bar Association of Defense Counsel, and Association. Schwarm is also the author of numerous health the Kansas (KWAA) and Wichita care administrative books and articles and is recognized as a Women Attorneys (WWAA) asso- leader in the area of the Health Insurance Portability and Ac- ciations. Ogle has held several posi- countability Act of 1996 (HIPAA) and the Emergency Medi- tions on the boards of the KWAA cal Treatment and Labor Act. He co-authored the HIPAA and WWAA and has been president Privacy ClearViews — Digital Desk of both associations. She has served Reference and the American Bar on numerous WBA committees, in- Association’s textbook “Health Care cluding being a member of the Bar- Privacy” chapter in Biotechnology o-Meter Committee for more than and the Law. Nancy A. Ogle 10 years and Bar-o-Meter editor in Schwarm is a shareholder in the 2001-2002. Ogle received the WBA’s President’s Award for Health Care Law Group of Polsi- Outstanding Service in 2000 and 2005. nelli Shalton Flanigan Suelthaus She is a frequent contributor to legal publications in the P.C. Since entering private practice state, and her articles have appeared in The Journal of the Kan- in 1992, Schwarm has represented sas Bar Association, Kansas Defense Journal, Kansas Municipal physicians, hospitals, and other Law Annual, Washburn Law Journal, and Bar-o-Meter. In re- Steven A. Schwarm health care providers and entities be- cent years Ogle has increasingly given her time presenting at fore state and federal administrative agencies throughout the CLEs and seminars throughout Kansas on subjects ranging country. Additionally, Schwarm has represented numerous from appellate practice and legal research to legal issues re- health care providers in civil malpractice defense litigation on lated to quilt making and design. both the state and federal level. Ogle has served on the Wichita Public Library Board since He has also worked for the state of Kansas as an assistant 2001 and has been vice president of the board since 2005. attorney general and as litigation counsel and general counsel Ogle worked as a librarian for 10 years prior to going to law for a state agency. He is a 1987 honors graduate of Washburn school. She received her bachelor’s degree from the Univer- University School of Law. sity of Kansas and her juris doctorate from Washburn Uni- versity School of Law in 1990. She also holds degrees from Emporia State University and Wichita State University. Ogle has worked as a law clerk for Kansas Supreme Court Justice Harold S. Herd and Hon. Patrick F. Kelly and Hon. John Thomas Reid, both of the U.S. District Court for the District of Kansas.

Distinguished Government Service Award

The Distinguished Government Service Award recognizes a Kansas lawyer who has demonstrated an extraordinary commitment to government service. The recipient shall be a Kansas lawyer, preferably a member of the KBA, who has demonstrated accomplishments above and beyond those expected from persons engaged in similar government service. Carol Gilliam Green is a 1981 graduate of Washburn Univer- sas Appellate Practice Handbook and received the Kansas Bar sity School of Law and holds a Master of Arts in English from the Association’s Outstanding Service Award in 1995 for her work University of Missouri-Columbia. Since 1981, she on the handbook and past service on bar association has been employed by the Kansas appellate courts, committees. Green currently serves on the Judicial first serving as research attorney for Chief Justice Council Procedure Advisory Committee, which pre- Alfred Schroeder and then as director of the Court pared the fourth edition of the handbook. of Appeals Central Research Staff. Green has been She is a member of the Board of Examiners of the clerk of the Kansas Supreme Court and Court of Court Reporters, the Washburn Law School Alumni Appeals since 1991. Association Board of Governors, past chair of the In her capacity as clerk, in addition to case pro- Continuing Legal Education Commission, and is a cessing responsibilities, Green serves as secretary to Fellow of the Kansas and American bar foundations. the Commission on Judicial Qualifications, the Cli- Green has actively served on committees of the Na- ent Protection Fund, the Board of Law Examiners, tional Conference of Appellate Court Clerks since and the Supreme Court Nominating Commission. Carol Gilliam Green 1991. She edited the second and third editions of the Kan- 14 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Outstanding Young Lawyer Award

The Outstanding Young Lawyer Award recognizes the efforts of a Kansas Bar Association (KBA) Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA. This year two recipients were chosen. Jennifer M. Hill is currently organizing and implementing Scott M. Hill received his Associate of Arts in 1998 from the American Bar Association (ABA) Wills for Heroes Program, Independence Community College, his Bachelor of Arts in which is an ABA Young Lawyers Division service project. Hill 2000 from Pittsburg State University, his Master of Business received her Bachelor of Arts in 2000 from the University of Administration in 2003 from Washburn University, and his Notre Dame and her Juris Doctor from Washburn Univer- Juris Doctor in 2003 from Washburn University School of sity School of Law in 2003. She is Law. Hill is licensed to practice law licensed to practice in the U.S. Dis- in Kansas, the U.S. District Court trict Court for the District of Kansas for the District of Kansas, and the and the Tenth U.S. Circuit Court of Tenth U.S. Circuit Court of Appeals Appeals. and is currently practicing law as an Hill is a member of the Ameri- associate with Hite Fanning & Hon- can, Kansas, and Wichita bar asso- eyman LLP, Wichita. ciations and the Kansas and Wichita Hill is a member of the Wichita (WWAA) Women Attorneys asso- Bar Association and serves on the ciations. She is currently serving as WBA Technology and Bar-o-Meter president-elect of both the Wichita committees, as well as belonging Jennifer M. Hill Young Lawyers Association and to the Wichita Young Lawyers As- WWAA and secretary-treasurer for sociation. Hill is also a member of Scott M. Hill the KBA Young Lawyers Section. She previously served as vice the Kansas Bar Association and has previously served on the president (2006-2007) and social chair (2005-2006) of the Annual Meeting Task Force. He is the 2008-2009 president Wichita Young Lawyers; program director (2006-2007), sec- of the KBA Young Lawyers Section and is a member of the retary (2005-2006) and special project chair (2004-2005) for American Bar Association and its Young Lawyers Division. the WWAA; and social chair (2006-2007) for the KBA Young Hill is a Fellow of the Kansas Bar Foundation and is a member Lawyers. of the Kansas Association of Defense Counsel. Hill is an active member of the Junior League of Wichita; He is active in his community and is a member of the president of the Notre Dame Alumni Club of Wichita; and is Leukemia and Lymphoma Society Kansas Chapter board of a staff writer for the Bar-o-Meter, the Wichita Bar Association’s trustees. He is also a community classroom volunteer for the monthly newsletter. In addition, she is a regular volunteer at Wichita Junior Achievement and is a member of the Young the Lord’s Diner and raised more than $700 for the Muscular Professionals of Wichita. Hill lists his hobbies as running and Dystrophy Association’s Lock Up for Kids in 2007. Hill was cycling, completing 28 marathons, the Heartland 100-mile named to the Wichita Business Journal’s “Top 40 Under 40” ultramarathon in 23:46:46, and two Century Bike Rides. in 2007. (Continued on next page)

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THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 15 Pro Bono Award

The Pro Bono Award recognizes lawyers or law firms for the delivery of direct legal services, free of charge, to the poor or, in appropriate in- stances, to charitable organizations whose primary purpose is to provide other services to the poor. The U.S. District Court for the District of Kansas Pro consideration of the target audience, the Task Force purpose- Se Task Force is not a formal organization but a volunteer fully wrote the guide at a very basic reading level. group of individuals who devote their time to advancing the The guide starts with a chapter titled, “Before You File need for an informative Your Case.” The reader and educational guide to is asked to consider federal court access. They “ways to resolve your undertook the daunting dispute/problem out- task of compiling an in- side of court.” Further structional and practical the guide provides a list “Pro Se Guide” for use by of agencies that can as- pro se litigants and others sist an individual with in understanding the pro- seeking legal advice and cess of filing, prosecuting, locations for legal re- and defending lawsuits in search. The Task Force the federal court system. used graphics along with The Task Force members narratives to describe drafted different chapters the different processes for the guide, complet- due to some individu- ing flowcharts and other (Front l-r) Karen Jannaman, Hon. David J. Waxse, and Michele Tunnell als learning through a (Back row l-r) Rachel Lyle, Jason Bruhn, Kim Leininger, Linda South, Casey graphics to make the Tourtillott, Mary Hale, and Steve Schwarm. visual method and oth- guide a meaningful tool. ers through reading text It is both detailed as to the different steps involved in a law- only. The Task Force created an outstanding product for ease suit, along with practical easy to follow suggestions to make of access to and a better understanding of the federal court access to the federal courts a better understood process. In system.

16 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Pro Bono Certificates of Achievement

In addition to the Pro Bono Award, the KBA awards a number of Pro Bono Certificates of Appreciation to lawyers who meet the following criteria: • Lawyers who are not employed full time by an organization that has as its primary purpose the provision of free legal services to the poor; • Lawyers who, with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that does not have the resources to employ compensated counsel; • Lawyers who have made a voluntary contribution of a significant portion of time to providing legal services to the poor without charge; and/or • Lawyers whose voluntary contributions have resulted in increased access to legal services on the part of low and moderate income persons. Six individuals have been awarded the 2008 Pro Bono Certificate of Appreciation. Alan F. Alderson is a managing partner with Alderson, Al- for 15 years; has been a member of the Third Judicial District derson, Weiler, Conklin, Burghart & Crow LLC in Topeka. His Nominating Commission since 1999; and has served two terms practice focuses primarily on family law. Alderson graduated as president of Topeka’s Kansas Legal Services Advisory Board, from Washburn University School of Law in 1973 with his juris where he has been a board member for nearly 20 years. doctorate and received his master’s of law degree in taxation from Alderson is a recipient of the KBA’s 2004 Pro Bono Award and the University of Missouri-Kansas City the TBA’s Pro Bono Award in both 1992 and 1998 and its Profes- School of Law in 1983. Prior to join- sionalism Award in 2000. ing Alderson in 1983, he was general counsel for the Kansas Department of Paul E. Dean grew up in Madison Revenue from 1979 to 1983. and attended the University of Kan- Alderson has been a member of the sas, where he received his bachelor’s Kansas Bar Association since 1983 and degree in 1994 and his juris doctorate is past president of the Administra- in 1997. For the last 11 years, he has tive Law Section and currently serves been a general practitioner with the as chair of the Fee Dispute Resolution Emporia firm of Sherman & Dean, Panel. He served as president of the with a concentration on criminal Alan F. Alderson Topeka Bar Association (TBA) 1995- law, contracts, and real estate law. He 1996, served nearly 10 years (two years as chair) on its Profes- has served as county counselor for sional Ethics and Grievance Committee, and serves as the current Greenwood County for the past seven chair of its Family Law Committee. Alderson has also served on Paul E. Dean years. the Judicial Council Advisory Committee on Administrative Law (Continued on next page)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 17 Pro Bono Certificates of Achievement before the Supreme Court of Missouri, the U.S. District Court (continued from Page 17) for the District of Kansas and the Western District of Missouri, and the Supreme Court of Kansas. She is a member of the Kansas and Kansas City Metropolitan bar associations and the Missouri Frederick W. Godderz is a sole prac- Organization of Defense Lawyers. titioner in Burlingame and has been in private practice since 1975. Godderz Holly A. Smith grew up in Snow- graduated from Washburn University mass, Colo., and came to Topeka in in 1966 and its law school in 1969. He 1998. She earned her Bachelor of Sci- is a member of the Kansas and Osage ence in criminal justice in 2002 from County bar associations. Washburn University and her Juris Doctor in 2005 from the University of Kansas School of Law. Smith prac- Frederick W. Godderz ticed primarily family law right out of law school with the Alderson Law Firm in Topeka. She is currently a real estate Aaron C. McKee joined Kimberly J. Ireland in forming the transactional attorney with Foreclosure Lenexa law firm McKee & Ireland LLC in February 2007. Pri- Holly A. Smith Management Co. in Overland Park. n or to starting the firm, McKee was employed by Baker, Sterchi, Cowden & Rice LLC. McKee gradu- ated from the University of Missouri with a Bachelor of Science in Business Administration in marketing, finance, Photo not and banking and logistics in 1994, available from Washburn University School of Law with a Juris Doctor in 1999, and has completed 13 of 39 hours toward a master’s in business administration at Baker University. McKee is licensed to practice before the Supreme Court of Aaron C. McKee Missouri, the U.S. District Court for the District of Kansas and the Western District of Missouri, the Supreme Court of Kansas, and the U.S. Court of Appeals for the Tenth Circuit. Since his youngest son was diagnosed with cancer in 2006, McKee and his family have actively raised money for local chil- dren’s organizations. During this time period they have raised over $4,000 for the Children’s Miracle Network and over $1,000 for the Muscular Dystrophy Association. In addition, McKee and his family have been guests on the 93.3 Mix for Kids Radiothon for the Children’s Miracle Network.

Kimberly J. Ireland joined Aaron C. McKee in forming the Lenexa law firm McKee & Ireland LLC in Febru- ary 2007. Prior to starting the practice, Photo not she was employed by Baker, Sterchi, available Cowden & Rice LLC. Ireland gradu- ated with a Bachelor of Arts in political science from Wichita State University in 2001 and a Juris Doctor from the University of Kansas School of Law in 2004. Ireland is licensed to practice Kimberly J. Ireland

18 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Milestones

ears of ervice Gerald L. Goodell is of counsel with the firm Goodell, Strat- 50 Y S ton, Edmonds & Palmer in Topeka. Goodell graduated from Washburn University School of Law in 1958. In 1984, he was David G. Arst practices in Wichita, where his legal career in- elected to the American College of cludes serving as a Wichita Municipal Court judge, an assistant Real Estate Lawyers and has served as county counselor, and a Chapter 7 editor of the Kansas Bar Association Bankruptcy Trustee for more than 16 (KBA) Real Estate Handbook. He is years. After graduating from Carleton also listed as a leader in real estate law College he attended the University of in Best Lawyers in America. Goodell Kansas School of Law, earning his ju- has served as president of the KBA ris doctorate in 1958. He has served and the Topeka Bar Association, and as a president and board member of he has served as chairperson of the the Wichita Branch of Kansas Legal Kansas Board of Law Examiners and Services, president of the board of the the Judicial Council Probate Com- Wichita-Sedgwick County Historical Gerald L. Goodell mittee. He currently serves on the Museum, and chairman of the board Kansas Judicial Council and is a member of the Kansas Ethics David G. Arst of the Wichita YMCA. Arst is a tri- Commission. He has been awarded the Washburn Law School athlete and has run more than 20 marathons. He also climbs at Distinguished Service Award, the KBA Distinguished Service least one 14,000-foot mountain in Colorado each year. Award, the Topeka Bar Association Warren Shaw Award, and the Kansas Justice Award from the Kansas Supreme Court. In 2002, he was awarded a doctorate of law from Washburn Uni- versity School of Law.

Robert T. Cornwell has his own Manuel “Manny” Mendoza practice in Wichita. He served two is originally from Independence, years in the U.S. Army prior to attend- Kan., where he played football in high school and at Independence ing the University of Chicago Law Junior College. He then attended Baker University where he was School, where he graduated in 1958 a member of the football team and with a Juris Doctor. Sigma Phi Epsilon fraternity. He grad- uated with a degree in business admin- istration. After graduating from Baker, Mendoza served in the Army Reserves Robert T. Cornwell and graduated from Washburn Uni- versity School of Law in 1958, begin- ning a career that spanned 43 years Lavone A. Daily has her own firm in Kansas City, Kan. She with State Farm Mutual Automobile graduated from the University of Kansas in 1962, majoring in Insurance Co., eventually attaining bacteriology and biochemistry. Daily then worked as a micro- the position of senior claim counsel biologist to pay her way through the University of Missouri- Manuel “Manny” in the company’s Bloomington, Ill., Kansas City School of Law. After Mendoza headquarters. graduating in 1957 with her law de- gree, she opened her private practice. Since retiring, he keeps involved in academia and the commu- During the 1960s, Daily raced sports nity, and is currently serving on the Washburn University School cars, and Judge William McHale re- of Law Board of Governors, serves on the McLean County, Ill., ferred to her as “Racoon” because of Jail Review Committee, and is a member of the American Civil the sunburn imprint around her eyes Liberties Union and McLean County AIDS Task Force. His from the racing goggles. She was the wife, Margot, and three children are graduates of Washburn Law first female prosecutor in Wyandotte School as well. County and in the state of Kansas, (Continued on next page) prosecuting primarily murders, rapes, Lavone A. Daily and robberies. Daily is a member of the Johnson and Wyandotte county bar associations and the Kansas Association for Justice. She also serves as a Mission Mu- nicipal Court judge pro tem.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 19 Milestones

Richard H. Rumsey currently has his own firm in Wich- and district court judge in Wichita. ita. Rumsey graduated from the University of Kansas with a In 1979 Stephan was elected the Kan- Bachelor of Arts and with a Doctor sas Attorney General and continued of Laws in 1958. He has served as an to serve until 1995. Stephan has also officer, director, or president for vari- served as the president for the Nation- ous church and civic organizations, al Association of Attorneys General, including the Wichita Jaycees, the and as the chair for the Governor’s local chapter of the American Can- Domestic Violence Fatality Review cer Society, the Haworth Toastmas- Board. He received the Smiling Bull ters Class, and the Sedgwick County Award from the Leavenworth Bar Master Gardeners. Currently, Rum- Association and the Fred Ellsworth Robert T. Stephan sey is a trustee and vice chairman of Award from the University of Kansas the Kansas State Sedgwick County Alumni Association. Richard H. Rumsey Research and Extension board and is also a trustee of Botanica for the Wichita Gardens. He received a Lifetime Membership from the Wichita Bar Association in 60 Years of Service 2007. Elvin D. Perkins spends his time working on civic projects Hon. Gerald L. Rushfelt serves as a magistrate judge for in Emporia. Perkins graduated from Emporia College with the U.S. District Court of Kansas a bachelor’s degree and then served in Kansas City. Rushfelt attended in the U.S. Navy for three years be- Graceland College but graduated fore obtaining his law degree from from the University of Kansas with Washburn University School of his undergraduate and law degrees. Law in 1948. Upon admission to Rushfelt has served as president of the bar, he became a sole practitio- both the Johnson County Bar As- ner with an active general practice. sociation and the Earl E. O’Connor Perkins has been active in the Kan- American Inn of Court. He has also sas Bar Association and has served served as a critique instructor in trial as chairman of the Continuing Le- gal Education (CLE) Committee practice at the University of Kansas Elvin D. Perkins Hon. Gerald L. School of Law and as a faculty mem- and the Kansas CLE Commission. Rushfelt ber of the National Institute of Trial He played an instrumental part in establishing mandatory Advocacy. He is a fellow of the Amer- CLE in Kansas. ican College of Trial Lawyers, the American Board of Trial Ad- vocates, and the American Bar Foundation. 50-Year Certificate photos and biographies not available Carl W. Shewmaker of Eureka obtained a Bachelor of Science in foreign service from Georgetown Hon. Paul M. Buchanan Calvin L. McMillan University School of Foreign Service Donald L. Burnett Thomas L. Medill Jr. and a law degree from Georgetown Heywood H. Davis William C. Nolton University School of Law. During Richard V. Foote Robert K. Scovel World War II, he served as an Army Robert D. Hecht Frank G. Spurney Jr. paratrooper during the occupation of Alvin D. Herrington Wayne T. Stratton Japan and in counterintelligence dur- Charles F. Lay George D. Wagstaff ing the occupation of Austria. Shew- Jacob F. May Jr. Robert Wunsch maker is a member of the Veterans of Foreign Wars, various Masonic bod- 60-Year Certificate ies, Friends of Eureka Public Library, Photos and biographies not available Carl W. Shewmaker the Eureka Kiwanis club, and Great Plains Diabetes Research Inc. John E. Altenborg Richard K. Hollingsworth Oscar S. Brewer Robert Martin Robert T. Stephan is a private practitioner in Lenexa, gradu- Hon. Marion W. Chipman Keith U. Martin ating from Washburn University School of Law in 1957 with a William K. Clark Marion P. Mathews Juris Doctor. Stephan then served as a municipal court judge Kenneth H. Hiebsch 20 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION KBF Recognizes Fellows and Kansas Legal Legend

he Kansas Bar Foundation held its an- were recognized giving $1,001-$4,999; two nual Fellows Dinner on June 19 with new Fellows Gold giving $5,000-$9,999 were ... serving the citizens of Kansas and the more than 100 attendees at Topeka’s recognized; and one new Fellows Diamond legal profession through funding charitable TTop of the Tower Club. Attorneys were cel- was recognized for giving $10,000-$14,999. and educational projects that foster the welfare, honor, and integrity of the legal system by ebrated for giving back to their communities The highlight of the night was the presen- improving its accessibility, equality, and and one was honored with the prestigious tation of the Robert K. Weary Award to the uniformity, and by enhancing public opinion of the role of lawyers in our society. Robert K. Weary Award. Hon. Wesley E. Brown, a Kansas legal legend. Sarah B. “Sally” Shattuck was welcomed “Judge Brown continues to set high standards Kansas Law Center 1200 S.W. Harrison St. by the Fellows as the new 2008-2009 presi- for the bar and for himself. His service to our P.O. Box 1037 dent of the Board profession is in- Topeka, Kansas 66601-1037 Telephone: (785) 234-5696 of Trustees while spirational,” said Fax: (785) 234-3813 Bruce W. Kent, Shattuck. Web site: www.ksbar.org 2007-2008 presi- The KBF Board OFFICERS dent, was thanked of Trustees estab- Sarah B. Shattuck, Ashland President for his work. Dur- lished the Robert ing Kent’s tenure, K. Weary Award John David Jurcyk, Roeland Park President-elect he worked to con- in 2000 to rec- tinue the efforts to ognize lawyers or James D. Oliver, Overland Park Secretary-Treasurer build the Founda- law firms for their tion through re- exemplary service Bruce W. Kent, Manhattan Immediate Past President cruitment of new and commitment

BOARD OF TRUSTEES Fellows in addi- to the goals of the Hon. Richard L. Bond, Overland Park tion to laying the Kansas Bar Foun- Kansas legal legend, Hon. Wesley E. Brown, Robert M. Collins, Wichita groundwork for dation. This award Daniel H. Diepenbrock, Liberal garciously accepted the Robert K. Weary Award at James C. Dodge, Sublette planned giving. At the annual Fellows Dinner. does not need Kenneth J. Eland, Hoxie Shattuck’s request, to be given each Joni J. Franklin, Wichita Terence E. Leibold, Lawrence Kent will continue to develop the giving pro- year, only when the Board of Trustees and David K. Markham, Parsons gram as its chair. Kent has a passion for es- Awards Committee decide that the award is Edward J. Nazar, Wichita Randall J. Pankratz, Newton tablishing a planned giving program to enrich earned. Despite Weary’s objection, the Board H. Douglas Pfalzgraf, Wellington the KBF’s future. of Trustees selected him as the initial recipi- Hon. Ronnie L. Svaty, Ellsworth J. Ronald Vignery, Goodland The night saw three members of the Board ent of the award in recognition of his decades Kenneth W. Wasserman, Salina of Trustees fulfill their terms: Eric Kraft, Te- of service to his community, the Kansas Bar James C. Wright, Topeka resa Meagher, and KBA past president Sally Foundation, and the legal profession in Kan- Pokorny. Newly appointed board members sas. Weary passed away in 2001, although his Amy Fellows Cline, Wichita Young Lawyers Representative include Amy Fellows Cline, Young Lawyers counsel to the KBF is missed, his legacy lives representative; Kenneth W. Wasserman, Dis- on. In 2002, the award was given to Frank C. Katherine L. Kirk, Lawrence Kansas Association of Justice trict 6; Hon. Richard L. Bond, District 1; and Norton, to Justice Robert L. Gernon in 2005, Representative David J. Rebein, KBA representative. Reap- Mikel L. Stout in 2006, and was presented Susan G. Saidian, Wichita pointed board members include Kenneth J. posthumously to Daniel J. “Dan” Sevart in Kansas Women Attorneys Association Eland, at large; Terence E. Leibold, District 2; 2007. Representative David K. Markham, District 3; H. Douglas The KBF continues to do great things Vaughn L. Burkholder, Overland Park Pfalzgraf, District 4; Randall J. Pankratz, Dis- statewide. From scholarships to law-related Kansas Association of Defense Counsel Representative trict 8; Daniel H. Diepenbrock, District 9; J. educated projects to promoting Interest on Ronald Vignery, District 10; and Michael P. Lawyers’ Trust Account grants, the Founda- Sara S. Beezley, Girard Kansas Bar Association Representative Crow, KBA representative. tion is making a difference. To become a part The KBF introduced 13 new Fellows who of the philanthropic arm of the Kansas Bar Michael P. Crow, Leavenworth Kansas Bar Association Representative pledged a $1,000 commitment in 2007-2008, Association, contact Meg Wickham, manager and 18 Fellows completed their $1,000 pledge of public services, at (785) 234-5696 or at David J. Rebein, Dodge City Kansas Bar Association Representative and are now eligible to move upward to other [email protected]. n

EXECUTIVE DIRECTOR levels of giving. Twenty-six new Fellows Silver Jeffrey J. Alderman, Topeka

MANAGER, PUBLIC SERVICES Meg Wickham, Topeka THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 21 Rule of Law Conference Held at Kansas History Center By Sara Beezley, Rule of Law Conference chair and KBA past president he Kansas Bar Association (KBA) and Kansas Bar Foun- Next on the program was a panel discussion on the topic dation along with the University of Kansas School of of “Why the Rule of Law Matters in Our State and in the Law and Washburn University School of Law hosted Global Community,” moderated by Judge Marquardt. The Ta “Rule of Law” conference on May 15, 2008, at the Kan- panel members were Maggie K. Fleming, human rights legis- sas History Center in Topeka. The idea for the conference lative assistant and aide to the Office of Sen. Sam Brownback; came from past president of the American Bar Association, Howard R. Fricke, former Chief Executive Officer of Security William Neukom, who had a goal for all 50 states to hold Benefit Group; Sue Harper Ice, public member on the Kansas similar conferences during his term as president. Four pilot State Board of Healing Arts; Hon. J. Thomas Marten, U.S. programs were held in 2007 by the states of Washington, Mis- District Court for the District of Kansas; and Tom Shine, souri, North Carolina, and Tennessee. After hearing of their business editor of the Wichita Eagle. successes and learning of the program, KBA President Linda The panel answered questions from the audience ranging Parks (2007-2008) immediately wanted to see that Kansas fol- from what we as citizens in Kansas can do to help victims in lowed suit. third world countries to improving the understanding of our The idea behind the “Rule of Law” conferences came from youth on basic civics issues. the World Justice Project, begun by the then ABA President- After the panel discussion, the guests were divided into Elect Neukom. That project was created to make advancing “breakout” groups to discuss the importance of the rule of law the rule of law a mainstream goal of the legal community and to each attendee in his or her individual profession. We were of all other major professions and disciplines. fortunate to have six members of the Kansas Court of Appeals, According to Neukom, the rule of law is the “foundation Judges Henry W. Green Jr., Richard D. Greene, Stephen D. of all thriving societies and is central to all efforts to ensure Hill, Patrick D. McAnany, G. Joseph Pierron Jr., and Melissa human security, fight poverty, eradicate corruption, improve Taylor Standridge, facilitate the small groups. The judges then public health, and enhance public education both in the reported back to the group as a whole. United States and around the world.” Each small group seemed to conclude that there was a lack The World Justice Project defines the rule of law as: (1) a of education on the importance of the rule of law in our pub- system of self-government in which all persons, including lic schools, that there are concerns with access to justice, espe- the government, are accountable under the law; (2) a system cially for the poor and the minorities, and there are problems based on fair, publicized, broadly understood, and stable laws; with the system of electing judges. (3) a robust and accessible process in which rights and respon- The event concluded with the luncheon address given by sibilities based in law are enforced impartially; and (4) diverse, Dean David L. Sollars, of the Washburn University School competent, independent, and ethical lawyers and judges. of Business, who spoke on “The Economic Importance of the Parks formed a committee last fall consisting of Parks, Dean Rule of Law,” emphasizing how countries that follow the rule Tom Romig and Professor Bill Rich from Washburn Law of law, tend to be more economically stable and prosperous School, Dean Gail Agrawal and Professor Steven McAlister The Kansas Bar Association and Foundation and the from KU Law School, Appellate Court Judge Christel Mar- Washburn and Kansas schools of law would like to express quardt, incoming KBA President Tom Wright, KBA Execu- their appreciation to all who participated as part of the pro- tive Director Jeff Alderman, and Past KBA President Sara gram or as an attendee. Discussions have been had about a fol- Beezley, as chair. low up program, or programs, that would try to educate the The committee’s focus was to model the conference after the public on the importance of the rule of law to all of our citi- pilot programs but to specifically address the issues of particu- zens, including going into high schools and emphasizing the lar importance to the citizens of Kansas. The committee was importance of students understanding how the three branches conscious of the need to put together a program that would of government work. n appeal to all disciplines, not just to lawyers and judges. Invitations were sent out to leaders of various organizations and associations, with the hopes of getting people from all walks of life. There were approximately 100 in attendance, including people from law enforcement, charitable agencies, realtors, teachers, insurance agents, homemakers, bankers, and city and state government. The opening presentation was given by Kansas Secretary of State Ron Thornburgh who emphasized the importance of not only having a rule of law but being able to enforce the rule of law. Thornburgh pointed out that with the upcoming elections it is so crucial to make sure that every citizen’s vote is counted and counted accurately.

22 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Thank You for Sponsoring the 2008 Kansas Bar Association Annual Meeting

MARIAN M. BURNS JANET C. WALSH CLYDE M. BURNS PATRICK G. WALSH

BURNS, BURNS, WALSH & WALSH, P. A.

ATTORNEYS AT LAW Ph: (785) 828-4418 P.O. Box 487, 704 Topeka Fax: (785) 828-3269 Lyndon, Kansas 66451 [email protected]

Osage City Offi ce P.O. Box 153, 517 Market Ph: (785) 528-3186

THE WOMEN ATTORNEYS ASSOCIATION OF TOPEKA

CONGRATULATES THE CAST, CREW AND WRITERS OF THE 2008 TOPEKA BAR SHOW FOR THEIR HARD WORK AND OUTSTANDING PERFORMANCE

www.topekawomenattorneys.com

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 23 Thank You for Sponsoring the 2008 Kansas Bar Association Annual Meeting

24 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Law Practice Management Tips & Tricks “Win-Win” E-Filing By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka he Nebraska Supreme Court’s Technology Committee of the Kansas Supreme Court. The initial committee included recently released the results of an e-filing pilot test in a judge, the district court clerk and technology staff, and prac- its trial courts. Several aspects of the pilot should be ticing attorneys. The project accepted the first electronically Tof interest to Kansas lawyers and judges. A PowerPoint dem- filed pleadings in just six months! That same core system is onstration of the filing system can be viewed at http://www. still functioning a decade later but never would have gotten nebraska.gov/courts/efile/demo/. Attorneys using the U.S. off the ground had it not followed the same rules Nebraska District Court’s CM/ECF system will note a familiar inter- eventually discovered – planning and development must in- face. Standard formats and interfaces have lowered the cost of volve the end-users of the project and e-filing must be cheaper e-filing systems and familiarity eases training and adoption. and easier to use than paper filing. More recently, Johnson E-Filing should benefit attorneys County has begun working toward an e-filing system. The key finding of the Technology Committee analysis was Is it Kansas’ turn to lead again? that “... keeping the perceived cost [of e-filing] favorable, in Kansas ought to be well situated to resume the march to- comparison to paper filings, is critical to inducing practitio- ward e-filing and electronic court access. The roll-out of Full ners to use the system.” William M. Miller and Judge William Court, a uniform court case management system, has been a Cassel, E-Filing in Nebraska – A Progress Report, The Nebraska terrific success. That success is being followed up with prog- Lawyer May, 2008: 11-12. ress toward imaging at the courts and e-mailed service returns What a revolutionary idea – a system that reduces the and docket notices. The two counties, Johnson and Shawnee, courts’ costs and increases efficiency should be priced lower each have battle-hardened information technology staffs who than paper filing! That might appear obvious but other states are leaders in developing e-filing expertise. Most importantly, (including Kansas) have toyed with or implemented e-filing the Kansas judiciary has a keen financial motivation to reduce systems, which penalize electronic filers. In Colorado, for ex- costs and increase efficiency. ample, the LexisNexis e-filing system imposes a surcharge on The Shawnee County District Court e-filing system may not electronically filed pleadings. be the technology we want to use to march into the 21st cen- Instead of that backward approach, Nebraska has created a tury. (It is too shockingly cheap to and adaptable to appeal as terrific deal for electronic filers. First, there appears to be no a glamorous and bold technology initiative.) Nevertheless, we charge to electronically file a pleading. Second, viewing case should duplicate its collaborative gathering of judges, clerks, filings requires a nominal $1 per case charge (to download sheriffs, attorneys, and law professors. Such a gathering would all pleadings) or a flat rate of $300 per month to download know that a great e-filing system needs an e-mail component unlimited case files. Compare that rate to the “deal” offered to supplement Web-based filing (a secret ingredient Nebraska Kansas attorneys in 2006 by the Kansas Supreme Court, $1 to has not cottoned to yet). In the end, what other justification search for a case and $1 per page to view (a proposal defeated for a Kansas e-filing success is needed than a chance to beat by SB 353). the Huskers! n The Nebraska model reduces paper-handling costs for both the courts and attorneys, eliminates delivery costs and delays, About the Author and provides inexpensive access to the court record from any location at any time. Such a win-win solution bespeaks careful Larry N. Zimmerman, Topeka, is a partner at Valentine & planning. Zimmerman P.A. and an ad- junct professor teaching law and Broad participation required technology at Washburn Univer- It seems Nebraska arrived at its win-win approach by involv- sity School of Law. He has spoken on ing a diverse cross-section of the legal community in the pilot legal technology issues at national e-filing project. The Nebraska Supreme Court Technology and state seminars and is a member Committee is comprised of justices, district court judges and of the Kansas Collection Attorneys clerks, practicing attorneys, and law professors. This mirrors Association and the American, attempts by the U.S. Federal Courts in rolling out the PACER Kansas, and Topeka bar associations. CM/ECF project. That system also tapped the concerns and He is one of the founding members of expertise of eventual end-users. Both groups’ membership was the KBA Law Practice Management public and meeting notes were available to the legal public. Section, where he serves as editor. The Kansas Supreme Court travelled this very road once before with dramatic success. The Shawnee County District To join the LPM Section or any other KBA section, you Court e-filing system was kicked off in 1996 with the blessing may register online at www.ksbar.org or call (785) 234-5696.

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 25 Thinking Ethics Initial Interviews with Prospective Clients: How to Prevent Conflicts of Interests By Professor Sheila Reynolds, Washburn University School of Law ffective July 1, 2007, the Kansas Supreme Court adopted clients that no information disclosed during the interview will Kansas Rule of Professional Conduct 1.17, concerning prohibit the lawyer from representing a different client in the conflicts of interests created by attorney interviews with matter. American Bar Association Ethics Opinion 90-358 sug- Eprospective clients who do not become clients, regardless of gests that lawyers explain that the necessary, preliminary steps whether the prospective client decides not to hire the attorney in considering representing a client in a new matter are first or whether the attorney decides not to accept representation. to determine if the lawyer has a conflict of interest with a cur- Basically, if the attorney does not learn any information that rent or former client and then whether the matter is within the could be “significantly harmful” if used against the prospective lawyer’s areas of practice and one in which the lawyer is willing client, the attorney is not precluded from later assuming rep- to represent the would-be client. Lawyers should caution pro- resentation of a client with interests adverse to the prospective spective clients not to divulge confidential information until client in the same or a substantially related matter. a decision on representation has been made and may request Even if the attorney has learned significantly harmful in- clients to agree that the information given for this purpose will formation, members of the attorney’s law firm may represent not be confidential and will not bar the lawyer or the law firm conflicting interests in the matter under two conditions. First, from representing adverse interests should no representation the interviewing attorney must have been careful not to obtain occur. If informed client consent is obtained, the lawyer should more disqualifying information than was necessary to deter- have the client execute a written agreement. mine whether to represent the prospective client. Second, the Lawyers should note that new Rule 1.17 continues their long- interviewing attorney must be timely screened from any partic- standing obligation to give prospective clients the same duty of ipation in the matter, including receiving no part of the fee and confidentiality provided to clients. Absent informed consent giving prompt notice to the prospective client about the screen- otherwise, lawyers shall not use or reveal information learned ing procedures adopted.1 Screening is allowed in this situation in the initial consultation except as permitted by Rule 1.9. Rule because an attorney-client relationship was never formed and 1.9, which concerns duties to former clients, authorizes lawyers the relationship between the attorney and the prospective cli- to use information learned in the course of representation of a ent is so limited in time and depth that the full duty of loyalty former client if the information has become generally known. warranted for actual clients does not apply. As a practical matter, if the information provided by the pro- The Kansas Rules of Professional Conduct do not attempt spective client is known by the adversary or otherwise generally to define what information would be “significantly harmful,” known, it not only may be used by the lawyer to the disadvan- because the determination of level of harm will vary depending tage of the would-be client, but it is also highly unlikely to be upon the facts of each case. The Restatement of Law Governing considered “significantly harmful” information that would cre- Lawyers, § 15, comment c, provides that when a prospective ate a conflict of interest with potential adverse party clients.n client seeks to disqualify a lawyer based on the receipt of sig- nificantly harmful information, the movant bears the burden of About the Author persuasion that the lawyer received such information.2 When lawyers engage in wide-ranging, in-depth discussions Professor Sheila Reynolds is a law professor at Washburn Uni- with prospective clients, they are more likely to obtain signifi- versity School of Law, where she teaches professional responsibil- cantly harmful information that will create conflicts of interests ity and an advanced ethics seminar. In with adverse parties, should the attorney-client relationship 2008-2009 she will serve as associate never develop. The Comments to Rule 1.17 advise that to avoid dean for Academic Affairs for Washburn disqualification of representation of adverse interests, the lawyer Law School. She previously has taught should limit the initial interview to only obtain information to a Legal Malpractice Seminar and Law determine whether the lawyer has a conflict of interest in rep- Clinic. She has served on the KBA Legal resenting the prospective client and whether the matter is one Ethics Advisory Committee, the KBA’s the lawyer would be willing to undertake. Thus lawyers should Ethics 2000 Commission, and the Ju- consider whether their procedures and styles of discussions in dicial Council’s Forms Committee. She initial interviews are causing them to obtain more information co-authored two chapters of the KBA’s than is necessary to decide whether to form an attorney-client Ethics Handbook (1996 and Supp. relationship. 2001) and the chapter on “Ethical Another permissible practice authorized by the Comments Considerations in Representing an Impaired Client” for the KBA is for a lawyer to obtain informed consent from prospective Long-Term Care Handbook (1999 and Supp. 2001).

FOOTNOTES 2. For a summary of appellate decisions regarding motions to disqual- 1. KRPC 1.0 Terminology, Comments 8-10 outline effective screening ify for this type of conflict,see William Freivogel’s Web site on attorney measures. conflicts of interest, http://www.freivogelonconflicts.com. In the Table of Contents, click on Initial Interview.

26 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION KANSAS BAR ASSOCIATION Special Thanks to the 2008 Annual Meeting Task Force (From Topeka unless noted) Mary D. Feighny, Office of the Kansas Attorney General, Celebrating Our Past, Present, and Future chair Mary Louise Allen, Rosselot Van Buren & Allen N. Larry Bork, Goodell, Stratton, Edmonds & Palmer LLP Martha J. Coffman, Kansas Corporation Commission Robert E. “Tuck” Duncan II Richard F. Hayse, Morris Laing Evans Brock & Kennedy Closest to the Pin Contest Golf Tournament Winners Chtd. Hole #5 Bruce Brumley Steve Tilton Chelsey G. Langland , Kansas Court of Appeals Hole #7 Glenn Braun Scott Johnson Mary Napier, Topeka Bar Association Hole #13 John Hampton Glenn Braun Linda S. Parks, Hite, Fanning & Honeyman LLP, Wichita Hole #17 Dick Honeyman Bruce Brumley Patrice Petersen-Klein, Kansas Corporation Commission E. Lou Bjorgaard Probasco, Lou Probasco Law Office Flag Prizes 2nd Place Douglas T. Shima, Kansas Court of Appeals Hole #4 Straightest Drive: Matt Gough Teresa L. Watson, Fisher, Patterson, Sayler & Smith LLP Paul Davis Mark Andersen James C. Wright, Wright Law Office Hole #9 Longest Putt: Evan Ice Thomas E. Wright, Kansas Corporation Commission Scott Hill Steve Gough Hole #14 Longest Drive: Toby Crouse Special Thanks to the Hole #18 Longest Putt: 2008 Annual Meeting Sponsors Jim Oliver Achterberg & Angell Legal Directories Publishing Alderson, Alderson, Weiler, Co. Conklin, Burghart & Crow Martin, Pringle, Oliver, LLC Wallace & Bauer LLP ALPS McKinney & McKinney AT&T Metropolitan Court Reporters Doug Witteman John “Jack” Black Baldock & Turner, LLP Inc. Timothy Girard Steve Doering Beezley, Sara S. Morris Laing Evans Brock & John Wine Douglas Fincher Bradshaw, Arden and Karen Kennedy Chtd. Edward Brown Michael Munson Burns, Burns, Walsh & Walsh Nora Lyon & Associates LLC Judge Linda Trigg Aaron Kite P.A. Parker & Hay LLP Whitney Damron Judge Allen Slater Core First Bank & Trust Parrish Hotel Corp. Thomas Burgardt Cox Communications Polsinelli Shalton Flanigan Davis, Unrein, Biggs & Head Suelthaus P.C. Grand Prize Winner: Steve Doering (85) LLP Probasco, E. Lou Bjorgaard Top Male Score: Duncan II, Robert E. “Tuck” Ralston, Pope & Diehl LLC Hon. Allen Slater (82) Feighny, Mary Rebein Bangerter P.A. Top Female Score: Fisher, Patterson, Sayler & Shook, Hardy & Bacon LLP Hon. Linda Trigg (36) Smith LLP The Bar Plan Goodell, Stratton, Edmonds & Tilton & Tilton Chtd. Palmer LLP Valentine & Zimmerman P.A. Hamilton, Laughlin, Barker, Visit Topeka Inc. Johnson & Watson Whitney B. Damron P.A. Henson, Clark, Hutton, Women Attorneys Association Mudrick & Gragson LLP of Topeka 1st Scott Hill 6th Gerald Green Hite, Fanning & Honeyman Woner Glenn Reeder Girard & 2nd Michael Munson 7th Traci DoeringFerrell LLP Riordan 3rd Tucker Poling 8th Justin Ferrell Kansas Court Reporters Assn. Wright, James “Jim” 4th Alissa Bauer 9th Jennifer Hill Kansas Gas Service Wright, Thomas “Tom” th th Leatherman, L.J. 5 Charles Peckham 10 Patrick Riordan THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 27 A Few Memories from...

KANSAS BAR ASSOCIATION

Celebrating Our Past, Present, and Future

I. Introduction Thus, as the Federal Rules have developed and evolved over the years, the Kansas Judicial Council has striven to keep up, State court practitioners who thought that they had no need and to recommend changes to the Legislature, which would to immerse themselves in electronic discovery rules no longer maintain the similarity between the state and federal codes of have that luxury. As of July 1, a client’s electronically stored civil procedure.7 information is discoverable in Kansas state civil cases, as it has This is not to say that Kansas slavishly follows every change been since 2006 in federal court cases. brought about in the Federal Rules, or that the independence Specific rules applicable to the discovery of electronic in- by which Kansas is known somehow exists everywhere but in formation in civil cases have now been enacted in Kansas. the Code of Civil Procedure. Indeed, there are notable depar- Continuing in its effort to keep the Kansas Code of Civil tures from the Federal Rules in the Kansas Code, and several Procedure abreast of the Federal Rules, and in recognition of distinct Kansas procedural rules, which were not derived from technological changes in the 21st century, the Kansas Leg- the Federal Rules.8 islature adopted amendments to the Kansas Code,1 effective 2 However, to a large extent, the Kansas civil procedure rules July 1, governing the discovery of electronically stored infor- very closely follow the Federal Rules, and maintaining that mation (ESI). This article will provide some background and consistency — when suitable for the citizens, litigants and summarize the key changes brought about by the adoption of 3 courts of this state — is beneficial. As the Kansas Supreme the bill. Court has stated: II. Kansas Typically Follows the Federal Rules of Kansas courts often look to the case law on the federal Civil Procedure rules as guidance for interpretation of our own rules, Since the adoption of the 1963 overhaul of the rules of civil as the Kansas rules of civil procedure were patterned See Stock v. Nordhus procedure in Kansas, those rules have been cousins, if not after the federal rules. , 216 Kan. identical twins, to the Federal Rules of Civil Procedure.4 In 779, 782, 533 P.2d 1324 (1975) (noting that the Kan- the absence of binding Kansas appellate authority on a partic- sas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law ular point, having the Kansas Code follow the Federal Rules [9] so closely has been helpful to Kansas practitioners and judges is highly persuasive.) in interpreting federal cases and applying the comparable Fed- 5 eral Rule. III. Electronically Stored Information is Real, As the Court of Appeals stated in Baumann v. Excel Indus- Substantial, and Now Discoverable tries Inc.: It is no secret that “The Electronic Age” has brought about Federal court decisions interpreting the federal code very significant changes in the manner and method by which of civil procedure are highly persuasive in applying the information is created, communicated, and stored. The ease Kansas Code of Civil Procedure, which is based on the with which information can be created has caused an explo- federal code. See Stock v. Nordhus, 216 Kan. 779, 782, sion in the amount of information being created. 533 P.2d 1324 (1975).[6] Endnotes begin on Page 34. 30 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: ESI COMES TO THE K.S.A. ... Almost 800 megabytes of recorded information is pro- Second, having discovery documents in electronic format duced per person each year, 92 percent of which is in helps lawyer and client to review, search, organize, categorize, magnetically stored form, on computers or computer and store the information produced. ESI can be stored in a storage media. To visualize this amount of information, very small, portable form, and thus easily transported. It can it would take about 30 feet of books to store the equiva- be sent to others very easily and quickly. It can be reviewed lent of 800 MB of information on paper.[10] on screen and organized in useful ways. And, searching for specific authors or subjects is markedly easier when the infor- Thus, if 92 percent of the information produced by each mation is electronically stored.15 person is electronic, and one seeks only paper documents in What is ESI? Essentially, the term covers any type of infor- discovery, only 8 percent of the existing information may be mation which has been created, or is stored, in magnetic, elec- obtained. Not only is the electronic information easy to cre- tronic, or digital form. The Committee Note to the amended ate, it is also very easy to store — in very great volumes. Federal Rule 34(a) notes that the discovery of “electronically stored information” is intended to “stand on equal footing Electronically stored information (ESI) is remarkable with the discovery of paper documents,” and is a term expan- due primarily to its volume; a standard desktop com- sive enough to cover “all current types of computer based in- puter can store the equivalent of 40,000,000 typewrit- formation, and flexible enough to encompass future changes ten pages of information. New desktop hard drives have and developments.”16 been developed that hold a terabyte of data. As printed Despite the prevalence of ESI, one might ask why the Kan- text, a terabyte would occupy 100 million reams of pa- [11] sas Code of Civil Procedure must be amended in order to per (made from 50,000 trees). address it. Could not the issue of ESI be addressed on a case- A diligent lawyer must seek discovery of information main- by-case basis? Could not each of the 31 districts in Kansas tained in an electronic format, in order to obtain what is out adopt rules of their own on the subject? Of course, the answer there. Once ESI is produced, there are significant benefits to is that uniform rules of practice and procedure help all par- having the information in electronic form. First, the “soft” or ties and counsel (as well as the courts) to practice in a uni- electronic version of the “document” may well reveal informa- form manner. Further, having a single set of rules applicable tion not reflected in a “hard” or paper copy of the document. to all civil cases helps in the development of a body of law, That information can include contextual information,12 as which will guide and help courts, counsel, and litigants as that well as underlying electronic footprints or “metadata,”13 which body of law develops. Finally — as noted above — having a would not be revealed by a printout of the same document.14 (Continued on next page)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 31 LEGAL ARTICLE: ESI COMES TO THE K.S.A. ... uniform code based on the federal rules ing litigants differently depending Thus, at a case management confer- will provide a body of federal case law, on the jurisdiction. National rules ence, the parties and the court should which will assist in the interpretation of are necessary to provide unifor- be prepared to discuss any issues relating the Kansas Code. As noted by the Ad- mity and prevent a patchwork of to the discovery of ESI. Counsel should ministrative Office of the U.S. Courts, local rules and requirements that become familiar with his client’s elec- in justifying the ESI changes adopted by would otherwise grow.[17] tronic systems, in order to discuss such those courts: issues in a meaningful manner. The same principles apply with equal The Kansas federal court has adopted One study found that the cost of force to the civil cases in the courts of guidelines for addressing ESI issues in discovery represents approximate- this state. case management conferences.20 These ly 50 percent of the litigation costs In 2007, the Civil Code Advisory guidelines require counsel to become in all cases, and as much as 90 per- Committee of the Kansas Judicial Coun- familiar with their clients’ electronic cent of the litigation costs in the cil took up the 2006 ESI amendments information systems, and to meet and cases where discovery is actively to the Federal Rules of Civil Procedure. confer about electronic discovery issues, employed. A “cottage industry” That study led to proposed bill, which including format and metadata (see be- of forensic specialists has emerged was then submitted to the Kansas Judi- low). Judges and counsel in state court with the sole purpose of assist- cial Council, approved by the Council actions may wish to review and become ing law firms comply with their in December 2007, and submitted to familiar with these guidelines as the electronic discovery obligations. the Kansas Legislature in January 2008. ESI rules are implemented in practice. As noted above, the Legislature then ad- Another valuable resource on the ap- Developing case law on discovery opted the Judicial Council’s bill without plication of discovery rules to ESI can of electronically stored informa- amendment. be found in Magistrate Judge David tion has helped provide guidance, Waxse’s oft-cited decision in Williams v. but it is inconsistent and incom- IV. Summary of Changes Sprint/United Management Co.21 plete. Disparate local rules have First, while ESI is not specifically de- 2. Privilege and work product filled the gap between the existing Additionally, claims of privilege discovery rules and practice, treat- fined in the new rules, the term is used numerous times in Senate Bill 434. The should be anticipated. With the high breadth of the term is emphasized in volume of documents being produced Federal Rule 34/K.S.A. 60-234, where in electronic form, the chance increases the added words (in italics) help to show that a privileged or work product docu- the Legislature’s intent: “electronically ment will slip through to production. stored information (including ... sound Parties and counsel should consider an recordings, images and other data or data agreement in advance (claw-back) that compilations stored in any medium from any such documents inadvertently pro- which information can be obtained ...” duced will be returned to the produc- Thus, electronic information stored in ing party. The equal chance that it could any medium from which information happen to either side, and the reciprocal can be obtained is subject to discovery. nature of the agreement, help to justify and support such a claw-back agree- A. K.S.A. 60-21618 ment.22 Another approach is the “quick 1. Case management conference peek” agreement. The court now is required to take ap- propriate action at a case management Under a “quick peek” agreement conference, with respect to: the requesting party reviews po- tentially responsive materials and (5) any issues relating to disclo- identifies what it wants produced, sure or discovery of electronically and the producing party then stored information, including the reviews that presumably smaller form or forms in which it should subset and produces only materi- be produced; als that are not privileged.[23]

(6) any issues relating to claims of 24 privilege or of protection as trial B. K.S.A. 60-226 preparation material, including, 1. Not reasonably accessible if the parties agree on a procedure Discovery of ESI may be avoided in to assert such claims after produc- the limited circumstance that the sources tion, whether to ask the court of such information are “not reasonably to include their agreement in an accessible because of undue burden or order.[19] cost.” The burden is on the party seeking to avoid discovery to make this showing,

32 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: ESI COMES TO THE K.S.A. ... in which case the requesting party may 2. Test or sample 4. Single form still obtain the information on a show- The rule is also amended to allow a The rules make it clear that ESI need ing of “good cause,” under such condi- requesting party to “test or sample any not be produced in more than one tions as the court may order. designated documents or electronically form. 2. Privilege log stored information.” This may include E. K.S.A. 60-23736 The statute is now formalized to re- a request to inspect the producing Document destruction quire that, when information (electronic party’s computer system itself, to test While sanctions are to be imposed for or otherwise) is withheld from produc- the completeness and accuracy of the the failure to make production of docu- tion on the basis of a claim of privilege production. ments, a court may not impose sanctions or work product, the withholding party In addition to inspecting and copy- where the failure to provide ESI, which must describe the nature of the with- ing, a demanding party may request held documents without revealing the an opportunity to test or sample mate- (Continued on next page) privileged or work product information rials. This request may be curtailed by contained therein (although the rule the Rule 26(b)(2) and 26(c) limitations does not specifically require a “privilege against burdensome and intrusive dis- log,”25) with sufficient detail to “enable covery requests. The comments point other parties to assess the applicability out that permitting a requesting party to Kansas Bar of the protection.”26 test or sample materials “is not meant to 3. Inadvertent production of create a routine right of direct access to Foundation privileged documents a party’s electronic information system” The statute also provides for the cir- and “courts should guard against undue Memorials cumstance where a privileged document intrusiveness resulting from inspecting is inadvertently produced, by requiring or testing such systems.” Fed. R. Civ. P. fi tting and lasting tribute to a the receiving party — upon being no- 34 (Advisory Comm. Note, 2006).[31] deceased lawyer can be made tified of his receipt of privileged docu- 3. Native format throughA a memorial contribution to The ments — to “return, sequester, or de- Unless otherwise specified in the Kansas Bar Foundation. This highly ap- stroy the specified information and any request, or agreed by the parties, “the propriate and meaningful gesture on copies,” and not to “use or disclose the responding party must produce the the part of friends and associates will information until the claim [or privi- [requested] information in a form or be felt and appreciated by the family lege] is resolved.” The producing party forms in which it is ordinarily main- of the deceased. does have the obligation to “take reason- tained or in a form or forms that are able steps to retrieve” the privileged in- reasonably usable.” The form in which Contributions may be made to the formation, if the receiving party notifies ESI is ordinarily maintained is typically Kansas Bar Foundation, 1200 S.W. Harrison, Topeka, KS 66612, stating in him that it has been produced. The duty called its “native format.” Producing whose memory it is made. An offi cer not to use privileged documents, which documents in native format can pose of the Foundation will notify the family have been inadvertently produced, is problems for the producing party, be- that a contribution has been made and the subject of a great deal of litigation, cause “it creates difficulties in redacting by whom, although the amount of the and goes beyond what is required by documents, is technically challenging, contribution will not be specifi ed. the (newly amended) Model Rules of and enables an opponent to alter the Professional Conduct,27 which only re- data after production. It also impacts For bequests or contributions in the quires the receiving party to “notify the the type of “metadata” that will be avail- sum of $1,000 or more, you can have sender” promptly.28 Notably, the pro- able to the opposing side.”32 a name, law fi rm, or message engraved ducing party must preserve the subject On the other hand, there are compel- on a paving brick that will be perma- information until any claim regarding ling arguments in favor of producing nently displayed at the entrance and the document has been resolved. ESI in native format. These include: sav- garden of the Kansas Law Center. C. K.S.A. 60-23329 ing the time and cost of converting the Business records information from native to PDF, TIFF, or other format; and reducing volume This section now clearly includes ESI by eliminating duplication (which is among the “business records,” which a relatively simple in native format, but party has the option to produce in lieu cumbersome and expensive in other for- of written answers to interrogatories. mats).33 In addition, methods of mark- D. K.S.A. 60-23430 ing and identifying documents in native 1. Produce ESI form, such as “hashing,” are easier and “Documents” requested under this more effective than “Bates” labeling.34 KANSAS BAR FOUNDATION rule now expressly include ESI. In that When the parties are unable to agree, www.ksbar.org connection, the parties should address the “current judicial trend continues to the form in which ESI will be produced be toward native production and away (e.g., PDF, TIFF, native format, etc.). from TIFF.”35

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 33 LEGAL ARTICLE: ESI COMES TO THE K.S.A. ... has been “lost as a result of the routine, good faith operation About the Author of an electronic information system.” While this may sound simple on its face, the requirement J. Nick Badgerow is a partner with Spencer Fane Britt & that the document destruction system was “routine,” as well Browne LLP in Overland Park. He is as operated in “good faith” has generated a fair amount of a member of the Kansas Judicial Coun- comment and litigation.37 This will require close scrutiny and cil and chairman of the Judicial Council’s involvement by the court, and may lead to satellite litigation Civil Code Advisory Committee. He is also on the subject. a member of the Kansas Board of Disci- pline for Attorneys, chairman of both the F. K.S.A. 60-24538 Kansas Bar Association Ethics Advisory 1. Form for production Committee the Johnson County Bar As- As with Requests for Production under the amended K.S.A. sociation Ethics & Grievance Committee. 60-234, a subpoena for documents may “specify the form in which electronically stored information is to be produced.” ENDNOTES 2. Testing or sampling 1. Senate Bill 434, passed the Kansas Senate (unanimously) on Feb.13, Again, subpoenas — like Requests for Production — may 2008, and passed the Kansas House (unanimously) on March 14, 2008. command “testing or sampling of designated electronically http://www.kslegislature.org/legsrv-billtrack/searchBills.dojessionid=60 4532A6704E68998D89390A2AE46117. It was signed by the Governor stored information.” on March 27, 2008. http://www.governor.ks.gov/news/NewsRelease/2008/ 3. Objection nr-08-0327a.htm. A person commanded by a subpoena to produce documents 2. http://www.kslegislature.org/legsrv-billtrack/searchBills.dojessionid=6 may object to producing ESI in the form or forms requested. 04532A6704E68998D89390A2AE46117. 4. Native format 3. The full text of Senate Bill 434 may be found on the Legislature’s Web site, at http://www.kslegislature.org/bills/2008/434.pdf. Of course, Again, there is a default to production of ESI in native for- practitioners before the courts of this state will want to review and become mat “or in a form or forms that are reasonably useable.” And familiar with each specific rule. production of ESI in multiple forms is not required. 4. See Spencer A. Gard, “Author’s Introduction to The First Edition,” set 5. Not reasonably accessible forth in 4 Kansas Law and Practice: Kansas Code of Civil Procedure Annotated, Fourth Edition, p. xi (2003). The subpoena statute parrots the request for production 5. See Back-Wenzel v. Williams, 279 Kan. 346, 109 P.3d 1194 (2005); statute by allowing the party served with a subpoena to avoid Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975); Marr v. Gei- production by establishing that the information “is not rea- ger Ready-Mix Co., 209 Kan. 40, Syl. ¶ 2, 495 P.2d 1399 (1972) (Rule sonably accessible because of undue burden or cost.” Again, 15); Marinhagen v. Boster Inc., 17 Kan. App. 2d 532, 535, 840 P.2d 534 (1992)(Rule 6); State v. Johnson, 19 Kan. App. 2d 315, 868 P.2d 555 (1994); similarly to K.S.A. 60-234, the court may order production Fredericks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976); Williams v. on a showing of good cause, and may specify conditions for Consoli. Investors Inc., 205 Kan. 728, 732, 472 P2d 248 (1970)(Rules the discovery. 34 and 37); Gideon v. Bo-Mar Homes Inc., 205 Kan. 321, 325, 469 P.2d 6. Inadvertent production 272 (1970)(Rule 41); Bott v. Wendler, 203 Kan. 212, 219, 453 P.2d 100 Finally, again following the comparable provision in K.S.A. (1969)(Rule 49); Baumann v. Excel Indus. Inc., 17 Kan. App. 2d 807, 815, 845 P.2d 65 (1993). 60-234, privileged documents that have been inadvertently 6. Baumann v. Excel Indus. Inc., 17 Kan. App. 2d 807, 815, 845 P.2d 65 produced must be returned, destroyed, or sequestered by the (1993). requesting party, upon being notified of the inadvertent pro- 7. J. Nick Badgerow, The Fork in the Road: A Practitioner’s Guide to the duction. 1997 Changes in the Code of Civil Procedure, 66 J. Kan. Bar Ass’n 32 (June- July, 1997). 8. See for example, K.S.A. 60-204, 60-205, 60-211, 60-217, 60-225. V. Conclusion 9. Wood v. Groh, 269 Kan. 420, 430, 7 P.3d 1163 (2000). 10. Keith Withers, Electronically Stored Information: The December 2006 Negative publicity has surrounded electronic discovery, par- Amendments to the Federal Rules of Civil Procedure, 4 N.W. J. of Tech. & ticularly in view of the four decisions on this subject in the Intell. Prop. 171 (Spring 2006), available on-line at http://www.law. much-publicized case of Zubulake v. UBS Warburg.39 Howev- northwestern.ed/journals/njtip/v4/n2/3, quoting Peter Lyman and Hal R. Varian, How Much Information? (2003), http://www.sims.berkeley.edu/ er, those decisions predated these new rules by more than two how-much-info-2003. years, and the most memorable sanctions and holdings of that 11. Robert L. Kelly, The Tech Side of E-Discovery, 17 Business Law Today case — spoliation penalties, the litigation “hold,” preservation No. 1 (Sept. – Oct. 2007), available online at http://www.abanet.org/bus- duties, and the severe sanctions which eventually resulted in a law/blt/2007-09/kelly.shtml. gigantic verdict for the plaintiff — are not a part of the Fed- 12. See, e.g., Armstrong v. Executive Office of the President,1 F.3d 1274 (D.C. Cir. 1993). eral Rules, nor of Kansas Senate Bill 434. 13. “Metadata. Data about data. Index-type information pertaining to While the 2008 changes to the Kansas Code of Civil Proce- the entire data set rather than the objects within the data set. Metadata usu- dure will bring about some changes in discovery, bringing the ally includes the date, source, map projection, scale, resolution, accuracy, Code into closer conformity to the Federal Rules40 and pro- and reliability of the information, as well as data about the format and structure of the data set.” Arizona Electronic Glossary, http://atlas.librar. viding uniformity will facilitate electronic discovery in civil arizona.edu/glossaryk_p.htm. cases in the courts of this state. n 14. Much has been said and written about “metadata,” see Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005), including the ethics of seeking and then looking at metadata. Compare, ABA Formal Ethics Opinion 06-442 (2006) with New York State Bar Ass’n Ethics Op. 749 (2001); New York County Lawyers’ Ass’n Comm. on Professional Eth- ics Op. 738 (2008); Professional Ethics Op. of the Florida Bar Op. 06-2 34 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: ESI COMES TO THE K.S.A. ... (2006); State Bar of Arizona Ethics Op. 07-03 (2007); D.C. Ethics Op. 30. Senate Bill 434, Sec. 4. 341 (2007). Suffice it to say that the subject exceeds the scope or the specific 31. Katherine Wittenberg, Litigation Gives Federal Rules a Big Shove, ABA purpose of this article. Litigation Section Hot Topics, available online at http://www.abanet.org/ 15. Lawrence Youst and Haejung Koh, Management and Discovery of litigation/litigationupdate/2006/december_hottopics.html. Electronically Stored Information, Comp. L Rev. and Tech. Jrnl. (Summer 32. Richard Schneider, Matthew S. Harman and Robert B. Friedman, 1997), available online at http://www.smu.edu/stlr/Youst.pdf. The New Federal E-Discovery Rules: An Expository Narrative, Metro. Corp. 16. Rule 34, Federal Rules of Civil Procedure, Advisory Committee Coun. (March 2007), available online at http://www.metrocorpcounsel. Notes, Comment to 2006 Amendment, Subsection (a). com/current.php?artType=view&artMonth=March&artYear=2007&Entry- 17. “Electronically Stored Information Target of New Rules,” 38 No=6329. The Third Branch, No. 11 (Nov. 2006), available online at http://www. 33. James D. Sherman and Lori E. Steidl, Discovery Savings: Go- uscourts.gov/ttb/11-06/electronically/index.html. ing Native, (2007), available online at http://www.law.com/jsp/ihc/ 18. Senate Bill 434, Sec. 1. PubArticleIHC.jsp?id=1178183085190. 19. Id. 34 See, Craig Ball, Gazing Into the Crystal EDD Ball, (2008), avail- 20. The U.S. District Court for the District of Kansas, “Guidelines for able online at http://www.law.com/jsp/legaltechnology/pubArticleLT. Discovery of Electronically Stored Information,” available online at http:// jsp?id=1201864414445 www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf. 35. Robert Douglas Brownstone, Preserve or Perish; Destroy or Drown 21. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. – eDiscovery Morphs into Electronic Information Management, 8 N.C. J.L. & 2005) Tech. 1, 46 (Fall, 2006). 22. See Whitney Adams and Mark Tuohey, Claw-Back Agreements 36. Senate Bill 434, Sec. 5. Help Protect Privileged Documents, 7 N. Y. Law Jrnl., No. 5 (Feb. 37. See, e.g., APC Filtration Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 2, 2004), available online at http://www.crickettechnologies.com/ (N.D. Ill. Oct. 12, 2007)(driving 20 miles to dispose of computer in a con- resources/nationallawjournalCricket.pdf. struction dumpster after receiving notice of a lawsuit is not a “good faith” 23. Wayne Moskowitz, Electronic Discovery Under the New Federal Rules, operation of a routine destruction policy). 63 Bench & Bar of Minnesota, No. 11 (Dec. 2006), available on-line at 38. Senate Bill 434, Sec. 6. http://www2.mnbar.org/benchandbar/2006/dec06/electronic.htm. 39. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D. N.Y. 2003); Zubu- 24. Senate Bill 434, Sec. 2. lake v. UBS Warburg, 216 F.R.D. 280 (S.D. N.Y. 2003); Zubulake v. UBS 25. See Cypress Media Inc. v. City of Overland Park, 268 Kan. 407, 414, Warburg, 220 F.R.D. 212 (S.D. N.Y. 2003); Zubulake v. UBS Warburg, 997 P.2d 681 (2000). 2004 WL 1620866 (S.D. N.Y. July 20, 2004). 26. Senate Bill 434, Sec. 2. 40. Major changes to all of the Federal Rules of Civil Procedure were ad- 27. Compare Senate Bill 434, Sec. 2 (and Rule 26(b)(5)(B), F.R.C.P.) opted effective Dec. 1, 2007. http://www.uscourts.gov/rules. Those changes with Rule 4.4, Kansas Rules of Professional Conduct. J. Nick Badgerow, are presently under review by the Kansas Judicial Council’s Civil Code Ad- “Rules vs. Rules: A Conflict on Inadvertent Production,” 77 J. Kan. Bar visory Committee, and – if approved by the Council – may be submitted to Ass’n 19 (January, 2008). the Legislature at the 2009 Legislative Session. 28. Rule 4.4(b), Kansas Rules of Professional Conduct. 29. Senate Bill 434, Sec. 3.

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THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 35 Appellate Decisions

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The hearing panel found clear and convincing evidence of viola- Attorney Discipline tions of KRPCs 1.2(d) (scope of representation) when respondent IN RE DWIGHT A. CORRIN assisted a client in engaging in criminal conduct by purchasing ORIGINAL PROCEEDING IN DISCIPLINE marijuana from his client; 1.4(a) (communication) when he failed INDEFINITE SUSPENSION to keep a client informed about the status of an expungement case, NOS. 96,885 AND 99,494 – JUNE 6, 2008 1.7 (conflict of interest) when he used the attorney-client relation- FACTS: Respondent, a private practitioner in Wichita, was the ship to obtain illegal drugs, 1.8(b) (conflict of interest – prohibited subject of two disciplinary hearings. The first hearing arose from two transactions [prior to July 1, 2007]) when he abused information separate client complaints and was uncontested. The panel found regarding his client, 1.15(a) (safekeeping property) when he placed violations of KRPCs 1.3 (diligence) and 1.4 (communication) and unearned fees in his operating account rather than the trust account, SCR 207 (cooperation with the disciplinary administrator). 8.4(b) (criminal misconduct) when he purchased marijuana on 10 The panel recommended that a two-year suspension be stayed to 15 occasions from a client, and 8.4(g) (conduct adversely affect- while respondent was placed on supervised probation subject to sev- ing fitness to practice) and SCR 207 for failing to cooperate in the eral terms and conditions. disciplinary process. While that case was pending before the Court, a hearing before HELD: The Court examined the disciplinary administrator’s files the same panel members on a third complaint resulted in a rare in- and found that the surrender should be accepted and respondent terim order issued by the panel giving respondent the opportunity to disbarred. disburse funds held in his trust account for more than a year. When IN RE SUSAN L. HARRIS the panel reconvened nearly five months later, respondent had not ORIGINAL PROCEEDING IN DISCIPLINE followed the directives of the order, and his trust account still held INDEFINITE SUSPENSION funds belonging to himself and 19 clients. The hearing panel found NO. 99,500 – MAY 16, 2008 violations of KRPCs 1.4, 1.15(a) and (b) (safekeeping property), FACTS: Respondent was a private practitioner in Kansas City, and 8.4(g) (misconduct adversely reflecting on fitness to practice Mo. She was admitted in Missouri in 1995 and Kansas in 1996. law) and SCR 207. Finding six aggravating and two mitigating fac- However, her Kansas license was administratively suspended in tors, the panel recommended indefinite suspension, concluding that 2003 for failure to complete annual registration requirements and probation was no longer a viable option. has remained suspended. HELD: Respondent filed exceptions to some of the panel’s find- Respondent was disbarred in Missouri in 2005 based on that ings. However, the Court found substantial, clear, convincing, and jurisdiction’s default rule. Although respondent wrote to the Kansas satisfactory evidence for the panel’s findings of fact and conclusions disciplinary administrator that she was filing a petition to set aside of rules violations and all the mitigating and aggravating factors. the Missouri order, she failed to do so. Eighteen months later, a for- The Court adopted the panel’s recommended sanction of indefinite mal complaint based on the Missouri disbarment was filed in Kan- suspension for both matters and further ordered respondent to pay sas, but respondent failed to appear at the Kansas hearing. Applying out all client funds held in his trust account under the supervision SCR 202 on reciprocal discipline, the hearing panel concluded she of the disciplinary administrator’s office. violated KRPCs 1.3 (diligence), 1.4 (communication), 1.16(d) (de- IN RE CHRISTOPHER N. COWGER clining or terminating representation), 5.5 (unauthorized practice), ORIGINAL PROCEEDING IN DISCIPLINE all of which had been alleged in the underlying Missouri complaint, DISBARMENT and 8.1 (disciplinary matters) and SCR 207 (cooperation with NO. 99,955 – MAY 9, 2008 disciplinary administrator). The panel unanimously recommended FACTS: Respondent was a private practitioner from Topeka. disbarment. Three complaints resulted in a disciplinary hearing on allegations HELD: Respondent did not file exceptions to the final hearing of multiple violations of the Kansas Rules of Professional Conduct report and failed to appear before Kansas Supreme Court for oral (KRPC). While the hearing panel’s report was pending before the argument. Despite the uncontested nature of the proceedings, the Kansas Supreme Court, respondent wrote to the clerk of the ap- Court set aside the panel’s findings of fact and conclusions of law pellate courts voluntarily surrendering his license to practice law in because they were based on substantive allegations of misconduct Kansas pursuant to SCR 217. that were never considered, due to Missouri’s default rule. Instead, the Court found respondent’s statement that she intended to initiate

36 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION a petition to set aside the default disbarment was false and violated HELD: No exceptions were filed. The Court accepted the un- KRPC 8.4(d) (misconduct prejudicial to the administration of jus- contested findings of fact and conclusions of rules violations and tice). The Court ordered indefinite suspension with a special condi- adopted the recommended sanction. tion that no petition for reinstatement be filed unless accompanied by proof of reinstatement in Missouri. IN RE DALE E. LOVELACE ORIGINAL PROCEEDING IN DISCIPLINE IN RE DIANE L. HILLBRANT INDEFINITE SUSPENSION ORIGINAL PROCEEDING IN DISCIPLINE NO. 99,501 – MAY 16, 2008 INDEFINITE SUSPENSION FACTS: Respondent was admitted in Kansas in 1992, is also ad- NO. 99,691 – MAY 16, 2008 mitted in Missouri and practiced primarily in Kansas City, Mo. In FACTS: Respondent was admitted in Kansas in 1984 and is also 2005, the United States charged him with failure to pay income admitted in Illinois with a registration address in Minnesota but is taxes. He pled guilty and served 12 months in prison. In 2006, the not admitted there. She also holds licenses to practice pharmacy in Missouri Supreme Court suspended respondent from the practice of Kansas and Minnesota. Following a series of bizarre legal claims and law, and he is now eligible to apply for reinstatement. At the Kansas correspondence with Minnesota businesses, she was charged with hearing based on the federal and Missouri proceedings, the panel six counts of unauthorized practice of law in Minnesota in 2004, found respondent failed to pay income taxes for seven years and was convicted of five counts and was sentenced to 450 days in jail, owes approximately $250,000 in taxes, interest, and penalties. a $5,000 fine and restitution exceeding $19,000. The convictions The panel found clear and convincing evidence of a KRPC 8.4(b) were upheld on appeal. The state of Illinois suspended her license (criminal misconduct) violation and considered four aggravating for a total of one month. factors and five mitigating factors. A majority rejected respondent’s The Kansas formal complaint was based on reciprocal discipline proposed probation plan and recommended definite suspension of arising out of the Minnesota and Illinois proceedings and alleged six months. One member opined that the probation plan was the violations of KRPCs 1.1 (competence), 4.1 (truthfulness), 4.2 (con- appropriate sanction. tact with represented persons), 5.5 (unauthorized practice), and HELD: Respondent filed exceptions to many of the panel’s con- 8.4(c) (deceit, fraud). Respondent filed an answer and appeared at clusions and recommendations. The Court found clear and convinc- the formal hearing, where she stipulated to the facts and rules al- ing evidence to support the factual findings, the legal conclusion of leged in the formal complaint. a Rule 8.4(b) violation and the aggravating and mitigating factors The panel’s final hearing report quotes extensively from the bogus as stated by the panel. However, in the interim, respondent was di- legal demands respondent served in Minnesota. The panel found agnosed with occupational and single episode depression for which clear and convincing evidence of the rules alleged in the formal he is on three daily medications. He has requested disability inactive complaint, concluded that five mitigating and five aggravating fac- status. The Court concluded indefinite suspension is the appropri- tors were present and recommended indefinite suspension based on ate level of discipline, given the nature of the misconduct and the respondent’s dishonest conduct. (Continued on next page)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 37 admitted present inability to practice. Ordinarily, a respondent must IN RE STEPHEN V. SICKEL wait three years to apply for reinstatement from indefinite suspen- ORIGINAL PROCEEDING IN DISCIPLINE sion, however, the Court expressly stated that respondent may apply DISBARMENT for reinstatement in six months with specific conditions. NO. 99,956 – MAY 7, 2008 FACTS: Respondent was a private practitioner from Olathe. He IN RE ROSIE M. QUINN was the subject of a disciplinary hearing on a complaint that he ORIGINAL PROCEEDING IN DISCIPLINE engaged in a conflict of interest when he continued to represent a ju- ONE-YEAR SUSPENSION STAYED venile after he had inappropriate and unwanted social contact with NO. 99,295 – MAY 23, 2008 the client’s mother, failed to provide a timely response to the initial FACTS: Respondent, a private practitioner in Kansas City, complaint, and engaged in other conduct that adversely reflected on Kan., faced a hearing on several allegations relating to mis- his fitness to practice. While the hearing panel’s report was pending management of her client trust account. An audit of the before the Kansas Supreme Court, respondent wrote to the clerk of account revealed that she caused the deposit of a personal the appellate courts voluntarily surrendering his license to practice injury protection check to her trust account that should have been law in Kansas pursuant to SCR 217. returned to the client’s insurance carrier. The balance of the account HELD: The Court examined the disciplinary administrator’s files, dropped below the amount owed to clients or third parties on sev- which included a newer complaint alleging similar inappropriate eral occasions. Respondent also deposited funds belonging to her and unwanted social contact with another female client, and found sister, a nonclient, into her client trust account. that the surrender should be accepted and respondent disbarred. The hearing panel found violations of KRPCs 1.15 (safekeeping property), 5.3(b) (failure to supervise staff), and 8.4(c) (misconduct IN RE FRANK P. TARANTINO involving dishonesty, fraud, deceit, or misrepresentation). The panel ORIGINAL PROCEEDING IN DISCIPLINE identified five aggravating factors, including prior discipline on two INDEFINITE SUSPENSION occasions for trust account violations, and two mitigating factors. NO. 99,499 – MAY 16, 2008 A majority of the panel recommended published censure while the FACTS: Respondent, a private practitioner from Kansas City, third member recommended six-month definite suspension. Re- Mo., was admitted to practice in Missouri in 2000 and in Kansas in spondent filed exceptions to the final hearing report and to the rec- 2001. In 2003, his Kansas license was administratively suspended for ommendation of suspension. failure to complete his annual registration requirements. In 2004, he HELD: The Court adopted the panel’s findings of fact and con- was disbarred in Missouri in a default proceeding when he failed to clusions of rules violations, all the mitigating factors and all but one respond to a “formal information” based on a client complaint. of the aggravating factors. The Court regarded a one-year suspension In late 2004, a Kansas proceeding based on the Missouri disbar- as necessary to impress respondent with the seriousness of her mis- ment was initiated. As in the Harris case also filed this date, respon- conduct. However, noting her service to the local legal community, dent claimed that he was filing a petition to set aside the default a majority of the Court suspended imposition of the suspension order in Missouri. When he failed to take this step in the next two for three years provided respondent complies with strict supervision years, a formal complaint alleging violation of KRPC 8.4(d) (mis- and monitoring conditions. A minority of the Court would impose conduct prejudicial to the administration of justice) was filed. Re- a more severe sanction. spondent failed to appear for the hearing. The panel found clear and convincing evidence of several rules violations based on the docu- IN RE MICHAEL K. SHEAHON ments in the Missouri proceeding and unanimously recommended ORIGINAL PROCEEDING IN DISCIPLINE disbarment. No exceptions were filed. INDEFINITE SUSPENSION HELD: Respondent failed to appear before the Court. Despite NO. 99,502 – MAY 16, 2008 the uncontested nature of the proceeding and the language of SCR FACTS: Respondent, a private practitioner from Salina, was ad- 212(d), the Court rejected the panel’s conclusions of violations that mitted in 1982. He was charged by the federal government for fail- had not been considered in Missouri or alleged in Kansas. Also, as ure to file income tax returns for 1995 through 2001. Since 2002 in the Harris case above, the Court found respondent’s false state- he has filed returns but has outstanding tax liability for all 11 years. ment that he would petition to set aside the default judgment to be He pled guilty to the misdemeanor crime of failing to file a return a violation of KRPC 8.4(d). The Court noted that respondent also for 1998 and was sentenced to three years of probation with con- violated SCRs 211 and 212 by failing to respond and appear. ditions. He self-reported the conviction to the Kansas disciplinary administrator. IN RE TIMOTHY A. TOTH A hearing panel of the Board for Discipline of Attorneys found a ORIGINAL PROCEEDING IN DISCIPLINE violation of KRPC 8.4(b) (criminal misconduct) and noted respon- ONE-YEAR SUSPENSION dent owes more than $200,000 in outstanding taxes, penalties, and NO. 99,420 – MAY 23, 2008 interest. It found six aggravating factors and three mitigating factors FACTS: Respondent was admitted in Kansas in 1990 and has a and recommended definite suspension of one year with proof of registration address in Independence, Mo. A hearing on four separate compliance with specific conditions prior to reinstatement. Respon- client complaints was held in May 2007. The underlying representa- dent did not file exceptions. tion involved a defense of an unspecified civil lawsuit, prosecution HELD: A majority of the Court rejected the panel’s recommended of an automobile negligence suit, prosecution of an employment sanction and imposed indefinite suspension, noting that SCR 219 discrimination suit, and prosecution of an adversary proceeding in should be sufficient to protect the public upon petition for reinstate- bankruptcy. ment and that respondent elected not to appear for oral argument The panel found clear and convincing evidence of violations of before the Court. A minority would impose a less severe sanction. KRPCs1.1 (competence), 1.3 (diligence), 1.16 (terminating rep- resentation), 3.2 (expediting litigation), and 8.4(d) (misconduct prejudicial to the administration of justice) and SCR 211 (failure to file timely answer to formal complaint). The hearing panel identi- fied five aggravating factors and three mitigating factors, including 38 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION respondent’s health problems, and recommended one-year definite suspension, noting respondent’s failure to take responsibility for the harm to his clients. HELD: No exceptions were filed, so the Court adopted the un- contested findings of fact and conclusions of rules violations. A ma- jority of the Court adopted the recommended discipline, while a minority would impose a lesser sanction.

IN RE EDWARD F. WALSH IV ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 99,410 – MAY 16, 2008 FACTS: Respondent was licensed in Kansas in 1997 and is also li- censed in Missouri. In 2005, his Kansas license was administratively suspended for failure to comply with annual registration require- ments, and it remains suspended. Two separate client complaints regarding estate sales resulted in a formal disciplinary hearing. The panel found clear and convincing evidence of violations of KRPCs 3.4(f) (fairness to opposing party and counsel) and 4.1(a) (truthfulness) and SCR 207 (failure to cooperate with disciplinary administrator). The Rule 3.4 violation occurred when respondent settled the claim of one of the complaining witnesses and included a verbal condition that the witness not voluntarily testify in the dis- ciplinary proceeding. Three aggravating and three mitigating factors were found. A majority of the panel recommended a definite suspen- sion of one year, while the third member filed a minority final hear- ing report that recommended indefinite suspension or disbarment. HELD: Respondent filed exceptions to portions of the majority and minority hearing reports. The Court reviewed the record and found clear and convincing evidence to support the factual findings and the rules violations. However, it rejected the majority’s recom- mended sanction and adopted the reasoning and recommendation in the minority’s report. Civil CORPORATIONS AND BYLAWS KANSAS HEART HOSPITAL ET AL. V. IDBEIS ET AL. SEDGWICK DISTRICT COURT – AFFIRMED NO. 97,131 – MAY 16, 2008 FACTS: This case involved a dispute among shareholders of two Kansas corporations, Cardiac Health of Wichita Inc. (CHW) and Cardiac Associates of Wichita Inc. (CAW), which together owned a controlling interest in Kansas Heart Hospital LLC (KHH). In 2005, CHW’s board of directors learned that 14 physicians (physicians), shareholders of both CHW and CAW, invested in the Kansas Medi- cal Center LLC (KMC), a hospital that was to be constructed in Andover. Based on these investments, the CHW board voted to re- deem the physicians’ CHW stock under a provision in the corporate bylaws, adopted in February 2000, which prohibited a shareholder from owning any shares in a “competing health care facility.” Idbeis was an investor. Soon after the physicians lost their CHW stock, CAW’s board of directors voted to redeem the physicians’ shares in CAW, because CAW’s articles of incorporation and bylaws required that all of its shareholders also own shares in CHW. Two separate actions were filed in which CHW and CAW sought declaratory judgments re- garding the stock redemptions. Along with those actions, KHH al- leged claims against Idbeis involving breach of fiduciary duty and interference with business opportunity. In addition, the parties filed cross-motions for partial summary judgment, and the physi- cians filed third-party claims against the directors of CHW and two (Continued on next page)

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 39 directors of CAW for breach of fiduciary duty for causing the stock GRAND JURY AND SUBPOENA redemption. The district court consolidated the cases. On Feb. 22, TILLER ET AL. V. JUDGES CORRIGAN AND BUCHANAN 2006, the district court granted CHW’s motion for partial summary ORIGINAL ACTIONS IN MANDAMUS – WRITS OF judgment, ruling that the redemptions of all the physicians’ stock in MANDAMUS GRANTED IN PART AND CASES CHW, except Farhat’s, “were lawful, authorized, and proper.” Influ- REMANDED TO DISTRICT COURT WITH DIRECTIONS enced, in large part, by its February 2006 decision, the district court NO. 99,951 – MAY 6, 2008 later granted CAW’s motion for partial summary judgment as well. FACTS: Three consolidated original actions in mandamus were ISSUES: (1) Corporations and (2) bylaws prompted by subpoenas duces tecum issued by a Sedgwick County HELD: Court stated that a corporate bylaw provision that re- grand jury summoned in response to a citizen petition under K.S.A. stricts a shareholder’s eligibility to own shares and requires those 22-3001, which called for investigation of alleged illegal abortions shares to be transferred to the corporation when eligibility is lost and other violations of the law by George R. Tiller M.D. and others is a valid restriction on ownership under K.S.A. 17-6426. Court performing professional services at Women’s Health Care Services stated the word “redemption” in a corporation’s bylaw is susceptible Inc. (WHCS) in Wichita. Tiller and WHCS moved to quash the to more than one meaning and, when considered in the context of subpoenas directed at WHCS’s records custodian, claiming they the bylaw at issue in this case and Kansas’ statutes, would be under- encompassed more than 2,000 patient records and thus subjected stood by a reasonably prudent person to mean a purchase of stock. the recipient to an undue burden and did not comply with the pro- A bylaw provision having this meaning does not violate K.S.A. 17- cedure to protect the privacy rights of abortion clinic patients. The 6401 or K.S.A. 17-6410. Court held that under the uncontroverted district court denied the motions to quash and Tiller and WHCS facts of this case, a corporate board of directors, in applying bylaw filed a petition in mandamus seeking an order to quash. provisions restricting ownership, made a business judgment in good ISSUES: (1) Grand jury and (2) subpoenas faith, with due care, and within the board of directors’ authority. HELD: Court upheld the constitutionality of the Kansas statute Court also held that in order to create a contract, an acceptance that provides for citizen-initiated grand juries. However, the Court must be unconditional and unequivocal. Under the uncontroverted sent the three cases seeking to quash subpoenas issued by a grand facts of this case, there is written evidence of an unconditional and jury back to the Sedgwick County District Court. Court held that unequivocal acceptance of a proposed corporate bylaw amendment, the Kansas statutes do not violate the separation of powers doctrine. and that acceptance created a contract among the parties. A bylaw Kansas is one of a few states that authorize citizens to petition for a provision that establishes a formula for the calculation of the price grand jury investigation. However, the Court said the grand jury’s to be paid when a corporation reacquires stock from a shareholder is powers are not unlimited and that grand juries are not licensed to not a penalty, even if the formula varies depending upon the circum- engage in arbitrary fishing expeditions, nor may they select targets of stances of the reacquisition and is not based upon current market investigation out of malice or with an intent to harass. The opinion value. instructed the district judges first to determine whether the scope STATUTE: K.S.A. 17-6002(a)(4), -6401, -6410, -6426, of the subpoenas is too broad and then whether the patient records -6519, -6602 would be too burdensome to produce. The district court also must

40 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION satisfy itself that the grand jury is not engaging in harassment. If so, during the next several months. The next time Esquivel came to an the district court should quash the subpoenas. If not, the final issue appointment, Watters had forgotten about the phone call with the for the district court is the balance of the patients’ constitutional technician. In February 2002, Esquivel became extremely ill and privacy interests against the state’s compelling interest in prosecut- had a emergency C-section and the gastroschisis was discovered. ing crimes. Court ordered that, if and when the district court settles Watters was out of town and did not participate in the delivery. The on the scope of records for which there is a compelling state inter- baby died approximately a month later. The district court granted est that justifies intrusions upon the patients’ constitutional privacy summary judgment to Watters in finding that plaintiffs had failed rights, the court must permit WHCS to redact all patient identify- to present expert testimony to establish that the doctor had deviated ing information from the records to be produced. In addition, only from the applicable standard of care or that the doctor’s failure to copies, rather than original records, may be sought. The Court fur- notify Michelle of the abnormal sonogram was the proximate cause ther directed that before any records are shown to the grand jury, of the baby’s postnatal suffering and death. In granting judgment to they must be reviewed by an independent attorney and independent South Central Kansas Regional Medical Center, the district court physician to further redact all irrelevant information. The Court also opined that the facility did not owe Michelle and Jesse the duty directed the district court to enter an order prohibiting the distribu- upon which they based their claims and that the claims were barred tion or dissemination of any information from the patient records by the release form Michelle signed prior to receiving the sonogram. outside the grand jury proceeding The Court of Appeals affirmed the summary judgment for South STATUTES: K.S.A. 2002 Supp. 22-3101; K.S.A. 22-3001, Central Kansas Regional Medical Center on both bases utilized by -3005, -3006, -3008(a), -3012, -3013(1); K.S.A. 60-245; and the district court, i.e., an absence of duty and a waiver of liability. K.S.A. 65-6703 With respect to Watters, the Court of Appeals disagreed with the LOTTERY district court’s ruling that the plaintiffs’ expert had failed to present STATE EX REL. SIX V. KANSAS LOTTERY evidence that the doctor had deviated from the applicable standard SHAWNEE DISTRICT COURT – AFFIRMED of care. However, the appellate court affirmed the holding below NO. 99,957 – JUNE 27, 2008 that plaintiffs’ expert had failed to present evidence of a causal link FACTS: The Kansas Attorney General filed an original action between Watters’ breach of duty and the actual injuries and damages in quo warranto and mandamus challenging the expanded gaming sustained by the plaintiffs. legislation passed by during the 2007 legislative session. The Kan- ISSUES: (1) Medical malpractice, (2) standard of care and sas Expanded Lottery Act (KELA) provided for gaming in casinos (3) expert testimony and parimutuel racetracks in four gaming zones in the state. The HELD: Court stated the sole issue was the causation element Shawnee County District Court held that the statute passed consti- of whether the Esquivels supplied sufficient evidence of causation tutional muster. through their expert, Dr. Giles, to avoid summary judgment. Court ISSUE: Does the legislative scheme provide for a lottery that is stated that Giles’ report contained a clear opinion that Watter’s owned and operated by the state of Kansas? breach of duty caused the injuries to the baby. Court stated that the HELD: Court concluded that ownership and operation are flex- Court of Appeals put great stock in the conclusion that the baby’s ible concepts. The Court will read a constitutional provision so as to bowel had been dead for weeks prior to delivery because Dr. Knight, carry out the intention of the citizens when they enacted the provi- the doctor that performed surgery on the baby after delivery, did not sion, and the Court will read a statute with a presumption of con- testify as an expert and did not testify that the predelivery necrosis of stitutionality. The Legislature and citizens amended the constitution the bowel was the proximate cause of the baby’s death. Court found in order to provide a mechanism for raising revenues for the state that by drawing that inference, the Court of Appeals incorrectly re- and for promoting economic growth, goals that KELA is structured solved the matter in favor of the summary judgment movant. Court to accomplish. KELA, while not providing for total and unambigu- concluded that the plaintiffs provided expert testimony on causa- ous ownership and operation by the state, contains sufficient indices tion and that expert opinion was not rendered incredible by the of ownership and control for it to comply with the constitutional testimony of a fact witness, so that the unusual remedy of summary mandate. judgment on the fact issue of causation was erroneous. STATUTES: K.S.A. 2007 Supp. 60-2102(b)(2); K.S.A. 2007 STATUTES: NONE Supp. 74-8702, -8723, -8733, -8734(d), -8737, -8741(a), -8749, DISSENT: Justices Beier and C.J. McFarland dissented finding -8750, -8766; K.S.A. 74-8701, -8801; and K.S.A. 75-702 plaintiff’s expert was clearly capable of describing the problems that may arise when a physician performing a Caesarean section is un- MEDICAL MALPRACTICE, STANDARD OF CARE, AND aware of gastroschisis in the baby he or she is delivering. But neither EXPERT TESTIMONY the expert nor the plaintiffs pointed to any documentary or testimo- ESQUIVEL ET AL. V. WATTERS ET AL. nial evidence that such problems did arise in this case. COWLEY DISTRICT COURT REVERSED AND REMANDED COURT OF APPEALS – REVERSED Criminal NO. 94,691 – MAY 23, 2008 FACTS: In November 2001, Esquivel had a gender determination STATE V. CRUM sonogram performed at the South Central Kansas Regional Medi- SEDGWICK DISTRICT COURT – AFFIRMED cal Center. The ultrasound technician observed a fetal abnormality NO. 95,729 – MAY 16, 2008 that he believed was gastroschisis, a condition in which the bowel is FACTS: In 2005, John Neal died of multiple blunt force and situated outside the body. The radiologist refused to review the film sharp force injuries. A large number of people testified to the events because the sonogram was not a diagnostic procedure. The techni- surrounding the homicide. The testimony indicated that Crum used cian told Dr. Watters of the observed abnormality, but this phone a wood handled hammer in killing Neal. DNA from the hammer call was not documented in Esquivel’s medical records. Watters’ of- matched Neal’s DNA. Neal’s DNA was contained in blood and mat- fice tried to contact Esquivel numerous times to have her come to ter found on Crum’s shoes. Crum claimed he slept through the en- the office and even spoke with Esquivel’s husband. Esquivel did not tire ruckus and that his shoe was contaminated when he later went come to the office and did not come to a scheduled appointment out to observe Neal’s body. THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 41 ISSUES: (1) Prosecutorial misconduct, (2) admission of evidence, HELD: Court stated that K.S.A. 22-3504 only applies if a sentence (3) appointed counsel, (4) violation of limine order, and (5) cumu- is illegal. The question of whether a sentence is illegal is a question of lative error law over which this court has unlimited review. An illegal sentence HELD: Court held that the prosecutor’s statements were fair is a sentence imposed by a court without jurisdiction, a sentence comment on the defense tactic of suggesting to the jury that the which does not conform to the statutory provision, either in charac- inconsistencies in the testimony of the state’s witnesses proved the ter or the term of the punishment authorized, or a sentence which testimony to be false. Court stated that if the defense attempts to is unambiguous with regard to the time and manner in which it is put the state’s witnesses on trial, the prosecutor can point that out to be served. Court held that where the relief sought is reversal of a to the jury. Court also found that the prosecutor’s questions to the conviction rather than the correction of an illegal sentence, K.S.A. defendant about the weight that the defendant would give another 22-3504 is unavailable as a vehicle to obtain such relief and the dis- witness’s inconsistent testimony was improper. However, the Court trict court should have denied relief on that basis. found that the impropriety of the prosecutor’s questions was tem- SATUTES: K.S.A. 22-3504, -3601(b)(1) and K.S.A. 60-1507 pered by the defendant’s responses because Crum’s responses ame- liorated, if not negated, the prosecutor’s intended result, and that STATE V. FEWELL beyond a reasonable doubt the questioning did not change the result SHAWNEE DISTRICT COURT – AFFIRMED of the trial. The Court found it was concerned how the prosecutor COURT OF APPEALS – AFFIRMED used Crum’s improperly elicited opinion testimony on premedita- NO. 95,041 – MAY 30, 2008 tion in its closing argument to suggest that the state had been ab- FACTS: Fewell was stopped for speeding, detained, and eventu- solved of its duty to prove the critical element of premeditation. ally searched after officer first questioned passenger (Brown) about However, the Court found the evidence of Crum’s guilt to be over- the odor of burnt marijuana and arrested Brown based on evidence whelming and the error harmless. Court found no error in a pho- found in pat-down search. Officer then did pat-down search of Few- tograph that was not displayed to any witness or testimony given, ell, finding drug evidence. District court denied Fewell’s motion to but that it went to the jury during deliberations along with all of suppress that evidence as fruit of an illegal search, based on State v. the other properly admitted exhibits. Court held that Crum failed MacDonald, 253 Kan. 320 (1993). Fewell appealed, claiming (1) to establish a justifiable dissatisfaction with his appointed counsel error to deny motion to suppress, (2) prosecutorial misconduct re- such that a denial of his motion to substitute counsel constituted an quired reversal of his convictions, and (3) cumulative error denied abuse of discretion. Court found a photograph of Neal’s body at the him a fair trial. He also claimed the use of his criminal history to crime scene, showing his face and upper chest and one arm, bent to enhance severity level of his conviction at sentencing violated the reveal a bagged hand was relevant and not unduly prejudicial. Court Sixth Amendment. Court of Appeals affirmed in divided opinion, found no reversible error in violation of the sequestration order or 37 Kan. App. 2d 284, finding smell of marijuana and officer’s experi- in Crum’s alleged violation of the order in limine. Court also stated ence in detecting marijuana provided probable cause for the search, the case did not present one of cumulative error necessitating a new and exigent circumstances justified the warrantless search of Fewell’s trial. person. Dissent found the search was not supported by probable STATUTES: K.S.A. 22-2903 and K.S.A. 60-261, -456(a) cause. Fewell’s petition for review granted. ISSUES: (1) Motion to suppress, and (2) prosecutorial STATE V. BROWN misconduct SHAWNEE DISTRICT COURT – AFFIRMED HELD: Close case, but under totality of circumstances that in- COURT OF APPEALS – AFFIRMED cluded more than odor of burnt marijuana, probable cause exist- NO. 96,862 – MAY 16, 2008 ed for the search of Fewell’s person. Fewell did not argue in peti- FACTS: Brown charged with aggravated battery and abuse of a tion for review that warrantless search was not justified by exigent child. Citing Social and Rehabilitation Services pressure on Brown circumstances. to admit a role in his child’s injuries, district court found Brown’s Prosecutorial misconduct claims appear to be evidentiary issues confession was not free and voluntary and suppressed the confession. not objected to during trial. No prosecutorial misconduct found. State filed interlocutory appeal. In unpublished opinion, Court of Prosecutor did not question officer to elicit comments on Few- Appeals affirmed. State’s petition for review granted. ell’s credibility, and did not comment on excluded and redacted ISSUE: Privilege against self-incrimination evidence. HELD: If a parent is compelled to admit to criminal acts or face No merit to claim of cumulative trial error. the loss of parental rights, the incriminating statements will be Supreme Court, federal circuit courts, and Kansas Supreme Court excluded from evidence when the parent becomes a defendant in continue to hold that use of prior convictions for sentencing en- criminal proceedings. Court of Appeals correctly affirmed the sup- hancement is constitutional. State v. Ivory, 273 Kan. 44 (2002), pression of Brown’s confession in this case. remains good law. STATUTES: None CONCURRING AND DISSENTING: (Luckert, J., joined by Rosen and Johnson, JJ.): Dissent from majority’s determination that DEAL V. STATE there was probable cause to search Fewell. Disagrees with majority’s MIAMI DISTRICT COURT – AFFIRM conclusion that officer’s investigation did not lessen the reasonable NO. 98,553 – JUNE 27, 2008 suspicion that arose from Fewell’s presence in a vehicle that smelled FACTS: Deal was convicted by a jury of first-degree murder in of burnt marijuana, and finds no circumstance that raises a particu- 1999 and sentenced to 25 years in prison. His conviction was af- larized suspicion that Fewell engaged in illegal activity. firmed on appeal. His 60-1507 motion claiming ineffective assistance STATUTE: K.S.A. 21-4701 et seq., 60-261, -404 of counsel was denied and affirmed on appeal as well. In 2003, Deal filed a pro se motion to correct an illegal sentence arguing the com- plaint was defective because it added elements not required by the first-degree murder statute. The district court denied the motion. ISSUE: Illegal sentence

42 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION STATE V. GREEVER not err in denying Reid’s request to sever his trial from his codefen- RENO DISTRICT COURT – AFFIRMED AND dant Williams. Reid claimed this deprived him of the right to an REMANDED WITH DIRECTIONS accomplice instruction. Court stated severance lies within the discre- COURT OF APPEALS – REVERSED tion of the trial court and Reid’s acquittal and the natural skepticism NO. 95,303 – MAY 16, 2008 of a codefendant’s testimony in a joint murder trial do not indicate FACTS: Officer Justin Maxfield stopped Greever for failing to that Reid was prejudiced by the failure to sever and the failure to properly use turn signal. As he spoke with Greever at the driver’s give an accomplice instruction. Court stated there was no evidence side window, Maxfield smelled the odor of marijuana and observed upon which the jury could reasonably convict Reid of the lesser in- what he thought was drug paraphernalia. Maxfield had Greever exit cluded offenses and the trial court’s failure to instruct was not er- the vehicle and advised him of his Miranda rights. Maxfield said roneous. Court found no cumulative error. Court reaffirmed the that he had no marijuana and indicated that he wanted to call his constitutionality of Kansas’ hard 50 sentencing scheme and that a lawyer before any pat-down search. Without allowing Greever to robbery that immediately preceded the killing of the victim qualified call his lawyer, Maxfield conducted a pat-down search and found as an aggravating circumstance to justify imposition of the hard 50 marijuana in his pocket. On the way to the station, Greever told the sentence under K.S.A. 21-4636(c), which provides that “[t]he defen- officers that he intended to tell the district court that it should either dant committed the crime for the defendant’s self or another for the deport him, kill him, or accept him as he was because he wasn’t go- purpose of receiving money or any other thing of monetary value.” ing to stop using marijuana. After denial of his motion to suppress, STATUTES: K.S.A. 21-3402, -3404, -3426, -3427, Greever was convicted of possession of marijuana and no drug tax -4636(c); K.S.A. 22-3202, -3204, -3414, - 3601(b)(1); and K.S.A. stamp. The Court of Appeal reversed Greever’s conviction finding 60-401, -407, -455, -447, -448 the initial traffic stop was illegal. CONCURRENCE: Justice Johnson concurred with the court’s ISSUES: (1) Fourth Amendment and (2) search and finding on a murder “for the purpose of receiving” money or seizure property. HELD: The Court held the issue of whether the smell of mari- juana provided probable cause was not properly preserved for the STATE V. SCOTT Court’s consideration. The Court found that the encounter between SEDGWICK DISTRICT COURT – AFFIRMED IN PART, Maxfield and Greever was not a voluntary encounter and conse- REVERSED IN PART, DEATH SENTENCE VACATED, AND quently was a seizure under the Fourth Amendment. Court held REMANDED that Maxfield observed Greever’s vehicle approach the deputy from NO. 83,801 – MAY 16, 2008 the rear and that Greever did not activate his turn signal until he FACTS: Scott convicted of felonies, including capital murder of was stopped behind the patrol car. This was a failure to properly use Elizabeth Brittain (EB) and premeditated first-degree murder of a turn signal. Because Maxfield had probable cause and reasonable Douglas Brittain (DB). Wakefield convicted in separate trial for his suspicion to stop, the seizure by Maxfield did not violate Greever’s involvement in these offenses. After trial court set aside jury’s death Fourth Amendment rights. Court held the district court properly verdict and conducted a new penalty phase, that jury again returned denied the motion to suppress. death verdict. On appeal from guilt phase, Scott (1) challenged the STATUTES: K.S.A. 8-1514(a), -1548; K.S.A. 21-3204(1); and legal sufficiency of the capital murder charge, and (2) argued the K.S.A. 22-2402(1) premeditated murder charge as multiplicitous to the capital murder DISSENT: Justice Johnson dissented. charge. He also claimed the district court erred in the guilt phase by (3) denying Scott’s motion to suppress statement, (4) failing to STATE V. REID properly instruct on capital murder charge, (5) not granting a new JOHNSON DISTRICT COURT – AFFIRMED trial based on prosecutorial misconduct, and (6) allowing prosecutor NO. 93,646 – JUNE 27, 2008 to read jury statements made by Wakefield’s defense attorney during FACTS: Reid was convicted by a jury of first-degree murder of closing argument in that trial. He also claimed (7) cumulative error a Texaco store’s assistant manager and of aggravated robbery of the denied him a fair trial. business. Reid executed the assistant manager with a shot in the In the penalty phase, Scott challenged (8) the constitutional- back of the head. Reid had worked as a cashier at the store for about ity of the weighing equation in K.S.A. 21-4624(e), (9) the relaxed a year and a half before being fired for stealing six months prior to evidentiary standard for penalty phase set forth in K.S.A. 21- the crime. Reid’s accomplice was Williams. Besides the cash register, 4624(c) as denying due process, and (10) the notice provisions in the robber was also able to take money out of the drop/floor safe, K.S.A. 21-4624(a) as unconstitutional because they do not require the back office safe, and the car wash coin box — places about which the state to specify the aggravating factors in the information. He customers would not generally know and to which only the manag- also claimed (11) juror misconduct during the first penalty phase er or assistant manager had access by key or combination. The jury denied him a verdict of life, thus death sentence could not be con- acquitted Reid of three counts of vehicle burglary and two counts of stitutionally imposed, (12) trial court failed to instruct jurors they theft based on actions several hours prior to the murder. need not unanimously agree regarding the existence of mitigating ISSUES: (1) Prior crimes evidence, (2) jury instructions, circumstances, (13) jury’s finding of aggravating circumstance of (3) motion to sever, (4) accomplice instruction, (5) lesser included creating risk of death to more than one person should be set aside, instructions, (6) cumulative error, and (7) hard 50 sentence (14) jury should not have been allowed to consider aggravating fac- HELD: Court held the trial court did not commit reversible error tor that he committed the crime for purpose of receiving money be- in admitting evidence that Reid had been fired for stealing and in cause K.S.A. 21-4625(3) applies only to murder for hire situations failing to give a limiting instruction. Court held that the firing for or where defendant kills to obtain inheritance, (15) trial court failed theft had a tendency in reason to prove Reid had unique knowl- to explicitly instruct jury that “the crime” for the aggravating factor edge of the store’s procedures and safeguards and would be correctly of committing crime for money meant the capital murder of EB, admitted into evidence on this basis. Court stated the trial court’s (16) there was prosecutorial misconduct during closing argument failure to give a limiting instruction was not clear error. Court held in penalty phase, and (17) error to admit special evidence of special the trial court did not err in giving the pattern jury instruction on verdict form from guilt phase that state Scott individually and per- eyewitness identification. Court concluded that the trial court did sonally killed or intended to kill DB. THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 43 ISSUES: (1) Capital murder charge, (2) multiplicity, (3) motion ing mitigating circumstances is reversible error. Death sentence is to suppress, (4) jury instructions, (5) prosecutorial misconduct, reversed. Case is remanded to district court for new capital sentenc- (6) closing argument, (7) cumulative error, (8) constitutionality ing hearing. of weighing equation, (9) constitutionality of relaxed evidentiary Court joins majority of jurisdictions that have concluded that du- standard, (10) constitutionality of notice provisions, (11) juror mis- plicating an element of the crime as an aggravating circumstance conduct, (12) juror unanimity on mitigating circumstances, (13) in the penalty phase of the trial is constitutional and conforms to aggravating circumstances of creating risk of death to more than one legislative intent. Scott’s remaining claims are speculative and can be person, (14) aggravating factor of committing crime for purpose of addressed on remand. receiving money, (15) failure to define “the crime,” and (16) use of K.S.A. 21-4625(3) is not limited to cases involving murder for special verdict form hire or where the defendant kills victim to obtain an inheritance. HELD: Guilt Phase The statute comports with Eighth Amendment requirement of dis- Although preferable for state to have explicitly alleged in the tinguishing murders, which are eligible for death penalty from mur- count charging capital murder that Scott killed DB, the omission ders that are not. was not fatal or prejudicial. “The crime” is inadvisable under the circumstances of this Murder of DB was a crime necessarily proved under the charge of case and, under other circumstances, might very well be preju- capital murder, accordingly, Scott’s convictions were multiplicitous dicial. To avoid error, PIK Crim. 3d 56.00-C(3) should be because K.S.A. 21-3107(2)(d) (Furse) is clear expression of legisla- revised to specifically designate the crime of capital mur- tive intent that a defendant cannot be convicted of both a charged der. On remand, trial court should conform its instruction and a lesser included offense arising out of the same conduct. Scott’s accordingly. conviction for first-degree premeditated murder of DB is reversed. Claims of prosecutorial misconduct in closing argument of penal- Scott’s request to defer interrogation was not an unequivocal in- ty phase are examined, finding error in prosecutor’s claim of “phan- vocation of right to remain silent. Although state failed to provide tom remorse” by Scott, which is not to be used on remand. timely arraignment on criminal possession of firearm charge, no Special verdict form was not necessary, and is disapproved for use prejudice resulted from any unnecessary delay. in future capital proceedings. On remand, however, the sentencing Pattern Instruction is deficient because it does not require a claim jury will be informed Scott has been found guilty of capital murder that Scott killed DB, but instructions read as a whole were suffi- for the intentional and premeditated killing of the Brittains. cient. Under facts of case, no error in instructing jury on definition CONCURRING (Johnson, J.): Concurs with the result, but of premeditation, and any error would have been harmless under the writes separately to take issue with applicability of aggravating factor circumstances. Trial courts are urged to use definition of premedita- in K.S.A. 21-4625(3). Agrees with Scott’s argument that this factor tion in Pattern Instructions for Kansas (PIK) Crim. 3d 56.04(b). should apply only to scenarios such as murder for hire or killing to Prosecutor telling jurors to honor their oath and return a verdict obtain an inheritance. Precedent in hard-40 cases does not necessar- of guilt was improper, as were some of prosecutor’s references to ily extend to death penalty cases. Facts of this case would not support Scott as a “murderer” and “killer” and reference to facts outside the a finding that Scott committed the murder for the purpose of receiv- evidence. Under the circumstances, district court’s refusal to grant a ing money or property. new trial was not inconsistent with substantial justice, and prosecu- STATUTES: K.S.A. 21-3107(2), -3107(2)(d), -3401(a), tor’s prejudicial remarks likely had little weight in minds of jurors. -3436, -3439, -3439(a)(6), -4624, -4624(a), -4624(c), District court erred in allowing state to read to jury statements -4624(e), -4625, -4625(2), -4625(3), -4635, 22-2901, made by Wakefield’s attorney in Wakefield’s trial, but error was -2901(1), -3201(b), 60- 261, -460(g); K.S.A. 21-3107(2)(d), harmless. -4624(e) (Furse); and K.S.A. 21-4624(d) (Torren) Trial errors identified in this case did not prejudice Scott’s right to a fair trial or influence the jury’s verdict. STATE V. SKOLAUT HELD: Penalty Phase SEDGWICK DISTRICT COURT – STATE’S APPEAL ON Brief history of constitutionality of weighing equation of K.S.A. QUESTION RESERVED IS SUSTAINED IN PART AND 21-4624(e) is discussed. That statute does not violate §§ 9 and 18 of DENIED IN PART Kansas Constitution Bill of Rights. Scott’s argument for additional COURT OF APPEALS – DISMISSAL OF THE APPEAL jury instruction — that life imprisonment is the presumed appro- IS REVERSED priate sentence, and that state must overcome that presumption for NO. 97,401 – MAY 16, 2008 death sentence — is rejected. FACTS: District court reinstated probation, refusing to consider The relaxed evidentiary standard for penalty phase set Skolaut’s misconduct occurring after his probation term but during forth in K.S.A. 21-4624(c) is sufficient to protect the defen- pendency of his probation violation proceedings. State appealed the dant’s right to a fair trial and does not violate U.S. or Kansas ruling on a question reserved, which the Court of Appeals dismissed constitutions. in an unpublished opinion, apparently for lack of jurisdiction. State’s Notice provisions in K.S.A. 21-4624(a) and (c) are sufficient petition for review granted. to provide the defendant with meaningful notice and an oppor- ISSUES: (1) Appellate jurisdiction and (2) probation violation tunity to respond to aggravating factors in compliance with Sixth proceedings Amendment. HELD: Under facts of case, Court of Appeals erred in dismissing Under facts of case, juror misconduct during the first penalty state’s appeal and applied a too limited standard as to whether to ac- phase trial did not deny Scott a verdict of life, and thus did not pre- cept an appeal on a question reserved. State’s appeal is reinstated. clude subjecting him to the death penalty in a subsequent penalty State’s appeal on a question reserved is sustained in part proceeding for the same offense. and denied in part. Under plain reading of Kansas stat- Under facts of case, reviewing instructions as a whole, there is ute, and the combined weight of authority from Kansas and substantial probability that reasonable jurors could have believed other jurisdictions, district court correctly held that post- unanimity was required to find mitigating circumstances. Trial probationary-period conduct cannot be considered by the court court’s failure to provide jury with proper standard for determin- during the violation stage of the proceedings, but incorrectly held that the conduct cannot be considered during the disposition stage. 44 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION STATUTES: K.S.A. 2006 Supp. 22-3602(b)(3); and K.S.A. 22- STATE V. STOWELL 3602(b)(3), -3716, -3716(a), -3716(b) RENO DISTRICT COURT – REVERSED AND REMANDED, COURT OF APPEALS – AFFIRMED STATE V. SMITH NO. 96,091 – MAY 16, 2008 COWLEY DISTRICT COURT – AFFIRMED AND FACTS: Stowell convicted of drug charges. District court denied REMANDED Stowell’s motion to suppress evidence from traffic stop, finding the COURT OF APPEALS – REVERSED drugs on Stowell’s key chain inevitably would have been discovered NO. 96,189 – MAY 30, 2008 when Stowell’s personal property was inventoried. In unpublished FACTS: Officer investigated car with broken taillight and expired opinion, Court of Appeals reversed, concluding in part that state tags. Second officer at scene questioned passenger (Smith) who was failed to demonstrate the inevitability of the discovery. State’s peti- sitting near the vehicle, and obtained consent to search Smith’s purse tion for review granted. where drug evidence led to her arrest. District court granted Smith’s ISSUE: Inevitability doctrine motion to suppress evidence, finding Smith had been lawfully seized HELD: Under facts of case, the inevitable discovery doctrine can- but questioning at the scene improperly exceeded the scope of stop, not convert unlawfully obtained evidence into admissible evidence and finding Smith’s consent did not remove taint of Fourth Amend- because prosecution failed to establish the evidence ultimately or ment violation. State filed interlocutory appeal. Court of Appeals inevitably would have been discovered by lawful means. reversed, finding questioning was no longer illegal after Muehler v. STATUTE: K.S.A. 8-1573(a), 20-3018(b), 22-2901, Mena, 544 U.S. 93 (2005), and consent provided legal basis for the -3602(e) search. Smith’s petition for review granted. ISSUE: (1) Search of passenger under Fourth Amendment and (2) consent to search HELD: Mena does not alter general rule that a law enforcement officer violates the Fourth Amendment to U.S. Constitution and § 15 of Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a traffic violation to consent to a search that is unrelated to the purpose of the stop. Review of Supreme Court Fourth Amendment cases, including the recent case of Brendlin v. California, 551 U.S. , 127 S. Ct. 2400 (2007). Under totality of circumstances Smith was seized for purposes of Fourth Amendment, and Court of Appeals incorrectly interpreted Mena as allowing law enforcement officers to expand scope of traffic stop to include a search not related to the purpose of the stop. Undisputed evidence supports the conclusion that there was no causal break that would purge Fourth Amendment taint. District court’s suppression of the evidence is affirmed. STATUTES: 42 U.S.C. § 1983 (2000) and K.S.A. 22-2402(1) and (2)

Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office

Proposed Revisions to the Code of Judicial Conduct

The Commission on Judicial Qualifications recently completed proposed revisions to the Kansas Code of Judicial Conduct. The Supreme Court has not yet reviewed the Commission’s draft but has authorized a public comment period until Aug. 15, 2008. The draft is available online at www.kscourts.org under “What’s New.” Comments from lawyers as well as judges are being solicited.

The Web site contains further details about the review process and has, in three-column format, the current Kansas Code, a redline copy of the American Bar Association 2007 Model Code of Judicial Conduct on which the Commission’s draft is based, and the Commission’s comments on proposed changes.

Public comments on the proposed revisions to the Kansas Code of Judicial Conduct should be sent to Carol G. Green, Clerk of the Appellate Courts, 301 S.W. 10th Ave., Rm. 374, Topeka, KS 66612, by regular mail or e-mail at [email protected].

Following the comment period, the Commission will again review the draft and submit its final recommendations to the Supreme Court, along with all public comments received.

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Supreme Court of the United States Swearing-In Ceremony for Kansas Bar Association Members

The Kansas Bar Association is arranging an excursion to Washington, D.C., for KBA members who desire to be sworn-in before the Supreme Court of the United States. Look for more information to come on the KBA Web site at www.ksbar.org and in future issues of the Journal of the Kansas Bar Association.

The swearing-in ceremony is scheduled for March 9, 2009.

If you have questions or would like to sign up, please contact Susan McKaskle, director of bar services, at (785) 234-5696 or at [email protected].

46 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Court of Appeals

shooting of a dog was not justified, and that Freeman had violated Civil department policy when he discharged his weapon. Freeman was ADVERSE POSSESSION terminated. The Civil Service Board sustained Freeman’s dismissal, CHESBRO V. BOARD OF COUNTY COMMISSIONERS OF but directed that Freeman be “transferred to a comparable position DOUGLAS COUNTY in the Jail Division.” Zoellner appealed arguing the Board had ex- DOUGLAS DISTRICT COURT – AFFIRMED ceeded its authority. The district court granted summary judgment NO. 98,545 – JUNE 27, 2008 to the Board finding the Board had express authority to review a FACTS: In December 2004, Chesbro purchased 173.79 acres sheriff’s decision regarding employment matters. However, the court of real estate near Lone Star Lake in Douglas County from Alvin held that Board exceeded its authority by placing Freeman back in Fishburn. Fishburn had owned the property since at least 1972. the same department. The property is located next to land owned by the county that is ISSUES: (1) Employment and (2) Civil Service Board a part of Lone Star Lake park. A public park access drive, Doug- HELD: Court held that when a county civil service board sus- las County Road 1-E, runs somewhat parallel to the property line tains a sheriff’s dismissal of a deputy, it does not have the author- of Chesbro’s property. In May 1972, Fishburn appeared before the ity to require the sheriff to rehire the deputy, create a position for Board of County Commissioners of Douglas County (Board) to dis- the dismissed deputy, or force another entity to hire the dismissed cuss constructing a boundary line fence between his property and deputy. Court stated that a county civil service board does not have the northeast boundary line of the Lone Star Lake area owned by the the authority to transfer a dismissed sheriff’s deputy to another law county. Fishburn and the Board agreed to the construction of the enforcement agency. line fence and split the costs of the materials equally. The line fence STATUTE: K.S.A. 19-805(d), -4303, -4311, -4314, -4316, was then constructed along the boundary line where such construc- -4327(d)(3) tion was physically possible. There was at least 10 feet between the CONTRACTS AND LIQUIDATED DAMAGES edge of the pavement for the park access drive and the fence line. In CARROTHERS CONSTRUCTION COMPANY LLC V. a July 2006 affidavit, Fishburn stated that he believed the fence had CITY OF SOUTH HUTCHINSON been constructed more than 25 years ago. Fishburn further stated RENO DISTRICT COURT – AFFIRMED that the fence was in the same location as when it was constructed. NO. 98,023 – MAY 23, 2008 Fishburn and his wife conveyed the real estate to Chesbro with a FACTS: In 2002, Carrothers executed a contract with the city general warranty deed. In late 2005, Chesbro applied to the County of South Hutchinson to construct a wastewater treatment facility Department of Public Works for a residential entrance permit from for $5.618 million. The contract provided Carrothers should reach his property onto Douglas County Road 1-E. The county denied substantial completion of the project by July 15, 2003, and final the application and Chesbro appealed. The trial court denied the completion by Aug. 14, 2003. The engineering company hired by Board’s motion for summary judgment on an agreed boundary the city, MKEC Engineering Consultants Inc. (MKEC), assisted theory. Nevertheless, the trial court granted the Board’s motion for in drafting the contract, which included a “time is of the essence” summary judgment on its adverse possession theory. clause and a provision for liquidated damages. An MKEC employee, ISSUE: Adverse possession David Chase, performed the calculations for the liquidated damages HELD: Court held the uncontroverted evidence established that provision. MKEC’s manager of environmental engineering, Lynn the county had acquired the subject property by adverse possession Moore, discussed the calculations with Chase and approved the pro- through a belief of ownership for the requisite 15-year period un- vision. Although several changes ordered extended the deadlines for der K.S.A. 60-503. Because Chesbro failed to bring forth evidence about a week, Carrothers did not reach substantial completion until establishing a material dispute of fact as to the Board’s adverse pos- Jan. 12, 2004. The city withheld $145,350 as liquidated damages. session claim, Chesbro’s argument failed. The district court granted summary judgment in favor of the city, Court also disagreed with Chesbro’s argument that the trial court finding the contract was unambiguous and the amount of liquidated erred in granting summary judgment on his claim that the Board’s damages was reasonable in relation to the potential injuries suffered denial of his residential entrance permit application was made in an by the city as a result of the delays in completing the wastewater arbitrary and capricious manner. Court stated that because Ches- treatment facility. bro’s land did not abut the county road and Chesbro did not show ISSUES: (1) Contracts and (2) liquidated damages that he had a legal right to access the road from his property, the HELD: Under the plain language of the contract and the un- Board was well within its authority to deny Chesbro a residential disputed facts of this case, court held the district court did not err entrance permit. Court concluded the Board’s decision was not ar- in determining the substantial and final completion dates of the bitrary or capricious. contract. Court also held that the amount of liquidated damages STATUTES: K.S.A. 60-256(e), -503, -2103(h); and K.S.A. 77- under the contract was reasonable when viewed prospectively and 621(c)(8) also when viewed in relation to the actual damages caused by the EMPLOYMENT AND CIVIL SERVICE BOARD breach. Furthermore, the nature of the transaction was such that the ZOELLNER V. CIVIL SERVICE BOARD OF amount of actual damages resulting from default was not easily and LEAVENWORTH COUNTY readily determinable. LEAVENWORTH DISTRICT COURT – AFFIRMED IN STATUTES: None PART AND REVERSED IN PART NO. 98,037 – MAY 16, 2008 FACTS: Sheriff Zoellner concluded that Deputy Freeman’s THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 47 HABEAS also held the trial court properly denied the K.S.A. 60-1507 motion RAWLINS V. STATE as successive where the movant failed to allege any unusual events or JOHNSON DISTRICT COURT intervening changes in the law that prevented him from reasonably REVERSED AND REMANDED being able to raise his claim in his previous K.S.A. 60-1507 motion. NO. 97,260 – MAY 16, 2008 STATUTE: K.S.A. 60-1507 FACTS: Rawlins filed K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. Approximately one month later, she com- LEGAL MALPRACTICE AND EXPERT TESTIMONY pleted probation and was discharged. District court later dismissed SINGH V. KRUEGER the pending 1507 motion, concluding it lacked jurisdiction because LYON DISTRICT COURT – AFFIRMED Rawlins was no longer in state custody. Rawlins appealed. On ap- NO. 97,919 – MAY 9, 2008 peal, state argued the 1507 motion was never started during Rawl- FACTS: Singh, an over-the-road truck driver, pled guilty to one ins’ probation because there was no timely service of the motion. count of conspiracy to deliver marijuana and one count of no tax ISSUES: (1) Appellate jurisdiction, (2) service of motion, and (3) stamp after more than 300 pounds of marijuana were found in his ineffective assistance of counsel semi-trailer truck. Singh was represented by Krueger. In September HELD: Kansas cases do not answer this jurisdictional question, 2004, Singh filed a motion to withdraw his guilty plea, arguing that but federal cases do. Under facts of case, where Rawlins was on pro- Krueger was ineffective because he spent less than one hour with bation when she filed her 1507 motion but completed probation Singh prior to his plea, never reviewed the affidavit in support of before the court could rule on that motion, the district court did the complaint with Singh, failed to provide adequate information not lose jurisdiction to decide the motion. Possible adverse collateral about the possibility of deportation, and was mistaken as to the like- consequences of Rawlins’ conviction kept the case from becoming lihood of federal pre-emption. The district court determined that moot. Singh received ineffective assistance of counsel and set aside his plea. Under facts of case, state waived the service issue. In the journal entry, the district court stated that were it not for Allegations of ineffective assistance of counsel are examined. Case Krueger’s “unprofessional errors,” there was a reasonable probability is remanded for evidentiary hearing on two of Rawlins’ five claims. that Singh would have proceeded to trial. A disciplinary investiga- STATUTES: 28 U.S.C. §§ 224(a) and 2255; and K.S.A. 60- tion determined that none of Krueger’s actions rose to the level of 212(b), -212(h), -1507, -1507(a) professional misconduct. In October 2005, Singh filed a petition claiming that Krueger breached his contract with him when Krueger HABEAS CORPUS committed legal malpractice and failed to perform certain duties HICKSON V. STATE while representing Singh. The district court ruled this was not the SEDGWICK DISTRICT COURT – APPEAL DISMISSED type of case that could be tried without an expert because none of NO. 97,752 – MAY 16, 2008 the issues raised by Singh were within “the common knowledge of FACTS: In Hickson’s criminal case, district court granted Hick- a lay person” and that Singh failed to present the needed expert son extra time to file a motion under K.S.A. 60-1507 and denied testimony. Krueger’s motions for summary judgment and dismissal Hickson’s request for transcripts. District court then denied Hick- were granted. son’s second motion for extension of time. Hickson appealed. ISSUES: (1) Legal malpractice and (2) expert testimony ISSUE: Filing post-collateral motion HELD: Court held the intricacies of the interplay between state HELD: Under facts, Hickson’s criminal case was finished, and he and federal jurisdiction, the customs of a particular court, and the did not file a 1507 motion. No rule of law in Kansas allows a judge federal law surrounding immigration and deportation are all spe- to rule on a civil motion in an ended criminal case. There is no cialized areas of the law about which a lay juror would not know. showing that an extension of time would prevent manifest injustice, Without any expert witnesses, the court held the district court did and no evidence that Hickson was prevented from filing a timely not err in granted summary judgment to Krueger. 1507 motion. District court lacked jurisdiction to grant or deny STATUTES: None Hickson’s motion because it had nothing to do with the criminal cause of action. MECHANIC’S LIEN STATUTE: K.S.A. 22-4506, 60-203, -1501, -1507, ALLIANCE STEEL V. PILAND ET AL. -1507(a), -1507(f)(2) FINNEY DISTRICT COURT – AFFIRMED NO. 98,762 – JUNE 27, 2008 HABEAS CORPUS AND ABUSE OF REMEDY FACTS: The Pilands own reality in Finney County and desired TONEY V. STATE to construct a metal building on their property. The bid went to SEDGWICK DISTRICT COURT – AFFIRMED Dunlap Construction and Associated Construction, but the precise NO. 97,756 – JUNE 27, 2008 relationship between the two is the crux of the litigation. Grooms, FACTS: Toney was convicted of aggravated burglary, criminal d/b/a/ Associated Construction, did not have a general contractor’s possession of a firearm, and aggravated robbery in November 2000. license in Finney County. Grooms arranged for the steel build- His conviction was affirmed on direct appeal. His 60-1507 motion ing materials with Alliance Steel, and listed himself as the general attacking the sufficiency of the evidence was denied and the district contractor on Alliance’s jobsite information sheet. Alliance filed its court’s decision was affirmed on Feb. 3, 2006. In July 2006, Toney mechanic’s lien on Dec. 17, 2003, listing Grooms and his company filed another 60-1507 motion alleging his trial counsel was inef- as general contractor. Alliance sought to foreclose its lien in Finney fective. After a nonevidentiary hearing, the trial court summarily County, but the Pilands were successful in dismissing that action denied relief as untimely and an abuse of the remedy. based on the failure of Alliance to be registered to do business in ISSUES: (1) Habeas Corpus and (2) abuse of remedy Kansas. The Court of Appeals reversed that dismissal and then the HELD: Court held that under the facts of this case, the movant’s Piland’s were granted summary judgment because the lien listed an allegation that his ineffective assistance of counsel claim will never incorrect person as general contractor and was not timely filed. be considered due to the trial court’s denial of his untimely K.S.A. ISSUE: Mechanic’s lien 60-1507 motion was insufficient to establish manifest injustice to HELD: Court stated that it is not fatal to the lien for the lien extend the one-year time limitation of K.S.A. 60-1507(f)(1). Court statement to have an erroneous date for the time materials or labor 48 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION were provided, so long as the filing date is within the time specified agreed to: (1) pay Countrywide in full; (2) pay IFI $36,000, plus by the applicable statute from the actual date materials or labor were $75 per month until the loan was paid in full; and (3) pay the IRS last supplied by the claimant. Court held the district court erred in the balance of the available funds, which was believed to be $2,000. finding the lien statement to have been untimely filed. However, the Wanna and Harjo signed a promissory note with Argent Mortgage court affirmed the district court’s decision on the basis that there Co. to obtain the funding for these agreements. Argent paid Coun- was no genuine issue of material fact as to the identity of the gen- trywide in full and paid IFI $36,000 prior to obtaining or recording eral contractor and Alliance’s lien was fatally defective due to its the necessary subordination agreements. Wanna and Harjo failed to failure to designate that contractor on its lien statement as required make payments to IFI. The district court entered summary judg- by Kansas law. Court stated the lien claimant’s agreement to supply ment in favor of Argent concluding that although the Ditech loan materials was not with a contractor, and any lien rights of this claim- was not void, IFI, as an unlicensed assignee, violated K.S.A. 16a-2- ant were subject to attachment in the precise manner prescribed by 301(2). As such, the court held that IFI was prohibited from collect- the statute and in no other manner. The failure of the lien claimant ing on the loan and foreclosing on the mortgage. to state the name of the general contractor on its lien statement was ISSUES: (1) Mortgages and (2) licensed supervised lenders fatal to its lien. HELD: Court stated that K.S.A. 16a-5-201 of the Kansas Uni- STATUTE: K.S.A. 60-1101, -1102, -1103 form Commercial Credit Code applies only to consumers’ remedies DISSENT: Judge Leben dissented by not agreeing that Alliance for violations by creditors. Under 16a-1-301, an assignee of a loan lacked sufficient evidence that Grooms was a general contractor. Be- is not a creditor; therefore, the penalty provision of K.S.A. 16a-5- cause reasonable minds can and do disagree with the district court’s 201(3), which allows a consumer to obtain a refund of twice the conclusion that Dunlap was the sole general contractor, Leben would amount of any excess interest charged, is not an available consumer reverse the judgment of the district court and remand the case for a remedy against assignees. Court also stated that K.S.A. 16a-2-301(2) trial where a fact-finder would resolve this genuine factual issue. clearly and unambiguously requires an assignee of a supervised loan to be licensed as a supervised lender before taking an assignment or MENTAL HEALTH directly collecting on such a loan and provides a three-month grace IN RE CARE & TREATMENT OF COLT period in which an unlicensed assignee may collect and enforce a SHAWNEE DISTRICT COURT – AFFIRMED loan if the assignee promptly applies for a license and has not had NO. 98,105 – MAY 9, 2008 its application rejected. To permit an unlicensed lender to collect on FACTS: Colt involuntarily committed under Kansas Sexually a supervised loan absent such application would render the statute’s Violent Predator Act (KSVPA), after jury found him to be a sexually three-month grace period meaningless. Court held that to permit violent predator. On appeal, Colt argued the district court erred in an unlicensed lender to collect on a supervised loan absent an ap- admitting evidence of Colt’s prior juvenile adjudications and con- plication for a license would be contrary to the Legislature’s intent victions for crimes not sexually motivated. He also challenged the as it would deprive the state of the ability to police assignees that sufficiency of the evidence supporting his commitment. engage in the business of taking and collecting on assignments of ISSUES: (1) Admission of evidence in KSVPA proceeding and supervised loans. (2) sufficiency of evidence STATUTE: K.S.A. 16a-1-101, -1-102(2), -1-301, -2-301, HELD: Brief overview of KSVPA given. In a KSVPA pro- -2-302, -2-303, -5-201, 9-102 ceeding, evidence of the respondent’s general criminal his- tory — even if not of a sexually violent nature — is not barred MORTGAGES AND TAX LIENS by K.S.A. 60-455 because that statute is not applicable in AMERICAN GENERAL FINANCIAL SERVICES V. KSVPA proceedings. In re Care & Treatment of Hay, 263 Kan. 822 CARTER ET AL. (1998), remains good law even after State v. Gumby, 282 Kan. 39 RENO DISTRICT COURT (2006). Colt’s general criminal history, including nonsexually vio- REVERSED AND REMANDED lent conduct, was significant to clinical diagnoses having a direct NO. 98,031 – MAY 16, 2008 relationship to the ultimate issue in the KSVPA proceeding and thus FACTS: The Carters were deep in debt for failure to pay sales was relevant and admissible evidence. taxes to the Kansas Department of Revenue (KDOR). However, Under facts of case, Colt’s own statements during his treatment they were able to buy a home financed by American General Finan- program since confinement, his actuarial risk assessment scores, and cial Services and later obtained a second mortgage. The Carters de- the expert opinion reflecting a combined analysis of antisocial per- faulted on the promissory notes to American. American foreclosed. sonality disorder and paraphilia, the evidence was sufficient for jury The district court gave the KDOR’s initial sales tax lien priority over to conclude beyond a reasonable doubt that Colt was a sexually vio- American’s purchase money mortgage. lent predator subject to involuntary commitment under KSVPA. ISSUES: (1) Mortgages and (2) tax liens STATUTE: K.S.A. 59-29a01 et seq., -29a01(a), -29a01(b), HELD: Court held there was no time when KDOR’s lien could -29a01(c), -29a02(a), -29a01(c), -29a06, 60-401(b), -407(f), -455 attach to the property before the purchase money mortgage was cre- ated. KDOR’s, which is treated for collection purposes as a judg- MORTGAGES AND LICENSED SUPERVISED LENDERS ment, did not attach to the property until after the purchase money INDEPENDENT FINANCIAL INC. V. WANNA ET AL. mortgage was created. DOUGLAS DISTRICT COURT – AFFIRMED STATUTES: K.S.A. 58-2305 and K.S.A. 2007 Supp. 79-3617 NO. 98,761 – MAY 23, 2008 FACTS: Wanna and Harjo took out a second mortgage on their SALES AND CONTRACTS home with Ditech Funding for $85,000. Countrywide Mortgage INTER-AMERICAS INS. CORP. V. IMAGING had the first mortgage. Wanna and Harjo defaulted on their pay- SOLUTIONS CO. ments to Ditech and Ditech assigned the note and mortgage to SEDGWICK DISTRICT COURT – AFFIRMED IN PART, Independent Financial Inc. (IFI). IFI was not a supervised lender REVERSED IN PART, AND REMANDED licensed by the state of Kansas. The IRS also filed a tax lien. Negotia- NO. 97,924 – JUNE 13, 2008 tions between the parties resulted in an agreement that IFI and the FACTS: Buyer (Inter-Americas Insurance Corp.) of computer IRS would subordinate their respective loans if Wanna and Harjo hardware and software of document imaging system sued seller THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 49 (Image Solutions Co.) for damages for failing to timely perform. prior to and after D.D.H.’s birth, and it was in the child’s best inter- Seller denied any breach and counterclaimed that buyer never gave ests for father’s rights to be terminated. Father objected. The district notice of any breach nor opportunity to cure any breach. District court declined to make a finding on the father’s parental fitness, but court held that the Uniform Commercial Code (UCC) applies, found the father’s parental rights should be terminated based solely granted summary judgment to seller on buyer’s claim, and granted on the best interests of the child standard. seller’s counterclaim. Buyer appealed. ISSUE: Termination of parental rights ISSUE: (1) UCC and (2) computer software HELD: Court stated that the Kansas Adoption and Relinquish- HELD: Article 2 (Sales) of UCC applies in Kansas to transactions ment Act is to be strictly construed in favor of maintaining the involving goods, and computer software programs are considered rights of natural parents. The Kansas Legislature intended to ex- goods subject to UCC even though incidental services are provided pressly permit courts, in weighing decisions whether to terminate with sale of software. Under facts of case, district court properly parental rights, to consider the best interests of the child as a factor, granted summary judgment to seller on buyer’s breach of contract but not as a stand-alone basis for terminating parental rights. Court claims. Contract had no deadlines, buyer had never complained of remanded for the district court to address whether the father was slow performance, and seller had done all it could do without buy- unfit. er’s cooperation. Court also properly granted seller’s counterclaim STATUTE: K.S.A. 59-2111, -2136(e), (h) for breach of contract, but improperly weighed evidence in granting summary judgment for damages. WORKERS’ COMPENSATION STATUTE: K.S.A. 84-1-204(2), -204(3), 84-2-102, GASSWINT V. SUPERIOR INDUSTRIES -202(a), -309, -309(1), -508, -602(1) INTERNATIONAL-KANSAS INC. WORKERS’ COMPENSATION BOARD – AFFIRMED TAX APPEAL AND LOW INCOME HOUSING NO. 97,518 – MOTION TO PUBLISH IN RE TAX APPEAL OF INTER-FAITH VILLA L.P. AND OPINION ORIGINALLY FILED FEBRUARY 8, 2008 INTER-FAITH DEVELOPMENT CORP. FACTS: Gasswint worked at Superior Industries International- KANSAS BOARD OF TAX APPEALS – AFFIRMED Kansas Inc. (Superior), an aluminum wheel manufacturing plant in NO. 97,728 – JUNE 6, 2008 Pittsburg for 8.5 years. In 2000, Gasswint experienced two separate FACTS: Inter-Faith Villa owns and operates Villa Central in shoulder injuries that she reported to her supervisors. After these in- Sedgwick County. Villa Central contains 37 housing units, two of- juries, Gasswint continued to work at Superior. Gasswint requested fice areas, a community room, a kitchen, and a laundry room for and was granted a transfer to the machine shop. In the machine residents. Inter-Faith Ministries Wichita Inc., a tax-exempt Kansas shop, Gasswint lifted aluminum wheels, weighing approximately 30 not-for-profit corporation, is the general partner of Inter-Faith Villa pounds each, from bins located at shoulder height and placed the and controls the operations of Villa Central. Eight of Villa Central’s wheels onto the line. After she began lifting the wheels, Gasswint housing units are for homeless people with chronic mental disabili- experienced increasing pain in her shoulders. On March 19, 2004, ties and the remaining 29 units are for people who need affordable Gasswint submitted a false mileage reimbursement request form to housing. Inter-Faith Development Corp. owns and operates Villa Tim Rakestraw, Superior’s safety supervisor, for her physical therapy North in Sedgwick County with a similar housing arrangement to travel costs. Villa Central. Both Inter-Faith organizations filed for exemption On April 29, 2004, Gasswint submitted another false mileage re- from ad valorem taxes. The Sedgwick County Appraiser’s office did imbursement request form to Rakestraw. Gasswint filed a workers’ not request a hearing on the applications and recommended that compensation claim on Aug. 9, 2004. The administrative law judge both exemptions be granted. Board of Tax Appeals denied an ex- (ALJ) noted that Gasswint suffered a single repetitive injury to both emption finding that both properties were not “used exclusively” for shoulders, a type of injury governed by K.S.A. 44-510e. The ALJ the exempt purpose of low income housing and that they did not found that Gasswint had returned to work in an accommodated po- receive financing from federal programs. sition and had earned an amount comparable to her preinjury aver- ISSUES: (1) Tax appeal and (2) low income housing age wage until she was terminated for cause from her employment. HELD: Court determined that because the subject properties were The ALJ concluded that Gasswint’s submission of erroneous mileage primarily low income housing facilities, K.S.A. 79-201b Fourth is reimbursement forms did not amount to a lack of good faith in the applicable exemption statute. Nevertheless, based on the plain obtaining postinjury employment. A majority of the board agreed meaning of K.S.A. 79-201b Fourth and the strict construction that and determined that Gasswint was not entitled to recover for work must be given to exemption statutes, the appellants were not en- disability because she had been terminated for cause due to miscon- titled to a statutory tax exemption due to their failure to meet the re- duct. The board specifically found that Gasswint had failed to act quirements of K.S.A. 79-201b Fourth. Moreover, the appellants do in good faith when she submitted the second mileage request form. not fit within the charitable purposes exemption under Article 11, § Accordingly, the board determined that Gasswint’s preinjury earn- 1(b)(2) of the Kansas Constitution because they have failed to show ings at Superior should be imputed as her postinjury wage, which that the services they provided were “free of charge” or so “nearly precluded her from recovering for work disability. free of charge as to make the charges nominal or negligible.” ISSUE: Workers’ compensation STATUTES: K.S.A. 77-621 and K.S.A. 79-101, -201 HELD: Court held under the facts and circumstances of this Second, -201 Ninth, -201b Fourth worker’s compensation case, the board did not err in concluding that a worker could not recover for work disability when the em- TERMINATION OF PARENTAL RIGHTS ployer had attempted to place the worker in an accommodated po- IN RE ADOPTION OF D.D.H. sition and the worker’s loss of employment resulted solely from the SEDGWICK DISTRICT COURT – REVERSED worker’s own misconduct. AND REMANDED WITH DIRECTIONS STATUTE: K.S.A. 44-510e NO. 98,992 – JUNE 6, 2008 FACTS: Mother and Catholic Charities filed a petition to termi- nate the father’s parental rights, alleging he abandoned D.D.H., he was unfit, he failed to adequately provide for the child and mother 50 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION WRONGFUL DEATH AND STATUTE OF LIMITATIONS proximate cause requirement, and no evidence warranted an in- BONURA ET AL. V. SIFERS ET AL. struction on intervening cause. Facts in State v. Collins, 36 Kan. JOHNSON DISTRICT COURT – AFFIRMED App. 2d 367 (2006), are discussed and distinguished. NO. 97,057 – MAY 2, 2008 No error in denying Bale’s motion to suppress. Under facts of FACTS: In November 2000, Bonura consulted with Sifers for a case, Bale was not under arrest, and a reasonable person would not new weight loss surgical procedure called a “duodenal switch” alter- perceive that she was in custody. natively known as “biliopancreatic diversion with duodenal switch.” K.S.A. 22-4513 is a recoupment statute. Consequently, imposi- On Jan. 15, 2001, Bonura signed a consent form for a “duodenal tion of BIDS fees is not part of a defendant’s punishment for a crime switch,” the operation scheduled was a “duodenal switch,” but Sifers and is therefore not part of the defendant’s sentence. Because district in his post-operative summary indicated he performed a “bilipancre- court did not consider Bale’s ability to pay the BIDS attorney fees, atic [sic] diversion.” Bonura developed severe complications, was in that order is vacated and remanded for proceedings consistent with intensive care for eight days, and died on Jan. 26, 2001. The death State v. Robinson, 281 Kan. 538. certificate listed pulmonary embolism resulting from morbid obesity STATUTES: K.S.A. 2007 Supp. 8-1001, -1567; and K.S.A. 21- as the cause of death. The Bonura family obtained Bonura’s medical 3142, 22-3414(3), -4513, -4529 records, and there is evidence they contacted an attorney within a few months of Bonura’s death. Three years after Bonura’s death, a STATE V. BARNEY Kansas City newspaper reported on Bonura’s weight loss surgery and SHAWNEE DISTRICT COURT – AFFIRMED IN PART, how other patients of Sifers had not received the duodenal switch REVERSED IN PART, AND REMANDED procedure they had requested. On Nov. 1, 2004, the plaintiffs filed NO. 96,497 – OCTOBER 5, 2007 their first petition for medical malpractice and by this time, Sifers PUBLISHED MAY 6, 2008 had died and his estate was substituted. The district court granted FACTS: Barney convicted and sentenced for aggravated bur- summary judgment to the defendants finding the statute of limita- glary, burglary, theft, and criminal damage to property. On appeal tions had run on all claims related to Bonura’s death because they he claimed (1) district court erred in admitting evidence of police were reasonably ascertainable when Bonura had died. dispatch statement resulting from anonymous caller reporting suspi- ISSUES: (1) Wrongful death and (2) statute of limitations cious behavior in neighborhood, (2) insufficient evidence supported HELD: Court held that Sifers’ claimed misconduct could have his convictions, (3) error in order for reimbursement of Board of been determined from the medical records existing when Bonura Indigents’ Defense Services (BIDS) attorney fees, and (4) sentence died. Plaintiffs do not allege that Bonura’s medical records were in improperly based on criminal history not proven to jury. any way concealed or falsified by medical personnel after his death. ISSUES: (1) Police dispatch statement, (2) sufficiency of evidence, Court stated it would have been reasonable for plaintiffs to have con- (3) BIDS reimbursement, and (4) sentencing sulted other medical or legal personnel to investigate the cause of his HELD: Police dispatch cases reviewed. Evidence in this case was death, particularly when the death certificate showed that decedent not inadmissible hearsay and did not violate Confrontation Clause. had died from a risk that the doctor had earlier minimized when Anonymous caller did not identify Barney by name or establish guilt discussing the surgical procedure to be performed. Court concluded of any crime. District court properly found testimony regarding po- that a reasonable investigation into Bonura’s death would have re- lice dispatch statement was not offered to prove truth of the mat- vealed the claimed wrongful conduct of Sifers within the two-year ter asserted, but only to explain officers’ actions after receiving the limitations period for wrongful death, for medical malpractice, and dispatch and to explain how officers initially approached Barney as a for fraud. The statute of limitations also ran on the claim for battery suspect. Even if error, it was harmless under facts and circumstances and for violations of the Kansas Consumer Protection Act. Court of case. found the district court did not err in refusing to apply the doctrine Sufficient evidence supported all of Barney’s convictions. of equitable estoppel. State concedes the district court failed to inquire into Barney’s STATUTES: K.S.A. 50-623 et seq.; and K.S.A. 60-512(2), financial ability to reimburse BIDS attorney fees. That part of Bar- -513(a)(4)(c), (a)(5), -1801, -1901 ney’s sentence is reversed and remanded for compliance with K.S.A. 2006 Supp. 22-4513. Kansas Supreme Court case law defeats Barney’s claim that crimi- Criminal nal history had to be proven to a jury beyond a reasonable doubt. STATUTES: K.S.A. 2006 Supp. 22-4513, 60-460; and K.S.A. STATE V. BALE 22-4513, 60-407(f) RENO DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, AND REMANDED STATE V. COTT NO. 96,929 – MAY 16, 2008 SHAWNEE DISTRICT COURT – REVERSED AND FACTS: Bale convicted of involuntary manslaughter for running REMANDED WITH INSTRUCTIONS over her son, Casey. On appeal, Bale claimed district court failed to NO. 97,955 – JUNE 27, 2008 instruct jury that state must establish that her conduct was proxi- FACTS: Cott was stopped for Driving Under the Influnce (DUI) mate cause of Casey’s death, and that Casey’s conduct was not an with her four-year-old son in the car. Cott pled no contest to DUI, intervening cause. She claimed her confession to a detective a week no liability insurance, failure to maintain a single lane, and no seat later should have been suppressed because she was not first advised belt. She was allowed to withdraw the plea, but in response, the of Miranda rights. She claimed the journal entry ordering reimburse- state dismissed the case and refiled it, adding a count of aggravated ment of Board of Indigents’ Defense Services (BIDS) attorney fees endangerment of a child and a count of following too closely. The and for BIDS application fee should be corrected because these were trial court dismissed the aggravated endangering charge because the not included in the district court’s oral pronouncement of sentence. DUI statute was more specific. ISSUES: (1) Jury instruction, (2) motion to suppress, and (3) ISSUES: (1) DUI and (2) aggravated endangerment of a child. BIDS fees HELD: No error in not giving separate proximate cause instruc- tion. Instructions on elements of the crime adequately expressed

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 51 HELD: Court held that K.S.A. 2005 Supp. 8-1567(h) and K.S.A. STATE V. GROSS 2005 Supp. 21-3608a are construed and ruled to be compatible; SEDGWICK DISTRICT COURT choosing which statute to charge is a matter of prosecutorial discre- REVERSED AND REMANDED tion. NO. 97,444 – JUNE 6, 2008 STATUTES: K.S.A. 2005 Supp. 8-1567(h) and K.S.A. 2005 FACTS: After police questioned the nervous driver (Stroot) of an Supp. 21-3608a illegally parked car, they proceeded to question passenger (Gross). Gross arrested and convicted of possession of cocaine. District court STATE V. CRAWFORD denied Gross’ motion to suppress, finding officers were entitled to ATCHISON DISTRICT COURT – AFFIRMED IN PART, briefly detain Stroot to discuss parking violation, and burnt smell of VACATED IN PART, AND REMANDED marijuana, Stroot’s nervousness, initial inconsistencies in statements NO. 98,312 – JUNE 13, 2008 about friend Stroot and Gross were to be visiting, and their later FACTS: Crawford convicted of burglary and theft while on proba- admission of lying provided articulable suspicion that car might tion for juvenile adjudications. Sentencing court ordered presump- contain marijuana. District court also found police officers were jus- tive probation for each offense to run consecutive to each other, and tified in their arrest and pat-down search of Gross. On appeal, Gross consecutive to the juvenile sanction. Crawford appealed. claimed trial court erred in finding there was reasonable suspicion to ISSUES: (1) Consecutive sentencing and (2) juvenile support her detention. She also claimed officer’s direction that Gross adjudications take items from her private area constituted a body cavity search that HELD: Issue of first impression in Kansas. Court’s power to im- was unlawfully conducted without warrant. pose consecutive sentences flows from statutory authority. Based on ISSUES: (1) Motion to suppress and (2) body cavity search Legislature’s exclusion of specific language listing juvenile adjudica- HELD: Trial court correctly determined that officers’ initial en- tions, it meant to exclude juvenile adjudications from cases calling counter with Gross was an investigative detention rather than a vol- for consecutive adult sentences. Illegal sentence in this case is va- untary encounter. Under facts of case, however, detention of Gross cated and remanded for resentencing. 2007 amendment to K.S.A. exceeded the scope of any stop or detention of the driver for a park- 38-2376(a) is noted. Also, state concedes remand is required for ing violation. Because officers did not have reasonable suspicion compliance with State v. Robinson, 281 Kan.538 (2006), and district that Gross was involved in criminal activity to justify her detention, court did not err in using Crawford’s prior juvenile adjudications to evidence obtained during the course of her unlawful detention and calculate criminal history. resulting search must be suppressed. Conviction is reversed and re- STATUTES: K.S.A. 2007 Supp. 38-2376(a); K.S.A. 2006 manded for new trial without evidence obtained during the unlaw- Supp. 21-4603d(f), 38-237(a); K.S.A. 21-402(c), -4608, ful detention, including evidence seized in search of car and Gross. -4720(b), 22-3504, -3504(1); K.S.A. 21-4603d(f)(1) Body cavity search issue is moot. (Torrence); K.S.A. 21-4603d(a) (Furse); and K.S.A. 1993 Supp. 21- STATUTE: K.S.A. 8-1567, -2116(a), -211(a)(1), -2118, 12- 3701 4211(d), 21-3105, 22-2402(1), -2520, -2522

STATE V. GORE STATE V. MCCADDON SEDGWICK DISTRICT COURT – REVERSED SALINE DISTRICT COURT NO. 97,380 – JUNE 6, 2008 REVERSED AND REMANDED FACTS: Gore convicted of aggravated sodomy. Prior to trial, dis- NO. 96,051 – JUNE 13, 2008 trict court denied Gore’s motion to dismiss charges for violation of FACTS: Anonymous caller reported domestic disturbance, with speedy trial statute, and attributed a disputed 56-day continuance to man leaving house for hospital. Police stopped car matching caller’s the defense. Gore appealed on speedy trial claim. description that resulted in arrest of driver (McCaddon) for DUI, no ISSUE: Speedy trial proof of insurance, and driving on a suspended license. District court HELD: Detailed examination of reasons given by trial court for found the officer did not have a reasonable suspicion to stop McCad- attributing the disputed continuance to the defense, finding them don for any criminal activity, but denied motion to suppress because inadequate to show the delay was caused by Gore. Under facts of stop was justified to check on driver’s welfare. McCaddon appealed. case, Gore was not brought to trail within 180 days of his arraign- ISSUE: Public safety stop ment. Gore’s conviction is reversed, sentence is vacated, and charges HELD: Under facts, this was not a valid safety stop. State v. are dismissed. Tucker, 19 Kan. App. 2d 920, rev. denied 255 Kan. 1007 (1994), is STATUTE: K.S.A. 22-3402, -3402(2) discussed and distinguished. Reversed and remanded to grant mo- tion to suppress. DISSENT: (Pierron, J.): Officer correctly initiated stop to clear up fuzzy but possibly dangerous situation. Officer’s actions were rea- sonable under the circumstances, which led to discovery of crimes being committed. Trial court’s ruling should have been affirmed. STATUTE: K.S.A. 22-2402

STATE V. PERRY MONTGOMERY DISTRICT COURT – AFFIRMED NO. 98,574 – MAY 16, 2008 FACTS: Perry pled to nonresidential burglary and was sentenced to 27 months’ imprisonment. His plea agreement contained a state- ment that he would pay “the costs of this action, and pay appointed counsel fees in the amount of $150.” There was no discussion of fees or costs at the sentencing hearing, but the journal entry ordered Perry to pay a $100 Board of Indigents’ Defense Services (BIDS) application fee and attorney fees of $150. 52 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION ISSUE: BIDS fees STATE V. RUTHERFORD HELD: Court held that where a defendant has agreed as a part of ANDERSON DISTRICT COURT – AFFIRMED an otherwise valid plea agreement to pay a specific portion of BIDS NO. 96,878 – JUNE 6, 2008 attorney fees, the sentencing judge may forego the statutory proce- FACTS: Rutherford was convicted of aggravated criminal sod- dure normally required by Robinson, and order such reimbursement omy and aggravated indecent liberties with a child based on contact in the journal entry of sentencing. he had with the daughter (C.R.) of his girlfriend (B.R.). C.R. has STATUTE: K.S.A. 22-4513(b) development delays and functions at a level similar to a child who is 2 years old or younger. Rutherford admitted to some conduct that STATE V. PRITCHARD may have been in appropriate and that he could possibly have hurt RENO DISTRICT COURT – AFFIRMED IN PART AND C.R. when he gave her baths. REVERSED IN PART ISSUES: (1) Probable cause, (2) sufficiency of the evidence, and NO. 97,165 – MAY 30, 2008 (3) departure sentencing FACTS: Pritchard convicted on numerous drug charges. On ap- HELD: Court rejected Rutherford’s argument that the state’s case peal, he claimed the district court erred in denying Pritchard’s mo- at the preliminary hearing was inappropriately based on his prior tion to suppress evidence discovered in search of Pritchard’s campsite conviction and his status as a registered sex offender. Court ultimate- claiming search warrant affidavit failed to set forth facts to support ly concluded that even if the prior conviction and the sex offender a finding of probable cause that Pritchard and others were manufac- registration were the only evidence presented at the preliminary turing methamphetamine. Pritchard also claimed two of his drug hearing to support a finding of probable cause, the district judge’s possession charges were multiplicitous. subsequent decision to prohibit such evidence at trial precluded any ISSUES: (1) Probable cause for search warrant and finding of prejudice. Court held it was unlikely the jury would have (2) multiplicity returned a different verdict with an instruction defining “lewd” and HELD: Under facts of case, information from various law en- there was sufficient evidence to support the jury’s rational belief that forcement officers corroborated information obtained from a con- Rutherford engaged in lewd fondling or touching done with the in- fidential informant. All was used to support a finding of probable tent to arouse or to satisfy sexual desires. Court held that even if the cause that was sufficient to justify the issuance of a search warrant. district court erred in granting a departure based on the vulnerable Under facts of case, Pritchard’s convictions for possession of drug age of the victim because it was already an element of the crime, it paraphernalia with intent to manufacture a controlled substance was not reversible error because the court based it’s departure on two and possession of drug paraphernalia with intent to use to package other factors not challenged by Rutherford. a controlled substance for sale are multiplicitous because they arose STATUTES: K.S.A. 21-3503, -3504, 3506, -4721(d) and K.S.A. from the same conduct and one unit of prosecution, and Pritchard 22-3208, -3414 could only be convicted on one of those counts. STATUTES: K.S.A. 2007 Supp. 65-4101(n); and K.S.A. 21- 4705(a), 65-4152, -4152(a)(3), 65-7006

THE JOURNAL OF THE KANSAS BAR ASSOCIATION JULY/AUGUST 2008 – 53 Classified Advertisements Attorney Services Office Space Available Positions Available continued continued

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54 – JULY/AUGUST 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION CLE Docket Live Seminars Friday, September 12 Insurance Institute, Kansas Law Center (newly renovated KBA offices), Topeka Friday, September 12 Agricultural Law co-sponsored by Kansas Farm Bureau Legal Foundation for Agriculture and Kansas State Foundation, Kansas Farm Bureau, Manhattan Friday, September 26 Litigation Radisson Hotel, Lenexa Friday, September 26 Recreation Law & Clay Shoot Flint Oak Resort, Fall River

Telephone Seminars Tuesday, September 23, Noon–1 p.m. National Childhood Vaccine Injury Compensation Act Matthew R. Crimmins, Walters, Bender, Strohbehn & Vaughan P.C., Kansas City, Mo. Wednesday, September 24, Noon–1 p.m. Healthcare Provider Competence/Impairment Evaluations, Remediation & Discipline Kelli J. Stevens, Kansas Board of Healing Arts, Topeka

Videocast Seminars Wednesday, August 6, 8:25 a.m.–12:05 p.m. (Session I); 1:25–5:05 p.m. (Session II) Legislative & Case Law Institute Video Replay (Featuring the 2008 Kansas Annual Survey as seminar materials) Topeka & Shawnee County Public Library, Topeka Wednesday, August 13, 9–10:40 a.m. and 1–2:40 p.m. Brown Bag Ethics Video Replay (Featuring Professor Michael Hoeflich, Legal Ethics & E-Lawyering and Hon. Stephen D. Hill, The Three Roles of the Ethical Lawyer), Topeka & Shawnee County Public Library, Topeka Friday, August 22, 9–10:40 a.m. Brown Bag Ethics Video Replay (Featuring Professor Michael Hoeflich, Legal Ethics & E-Lawyering and Hon. Stephen D. Hill, The Three Roles of the Ethical Lawyer), Topeka & Shawnee County Public Library, Topeka Friday, August 22, 12:30–4:15 p.m. The Many Sides of Environmental Law Video Replay Topeka & Shawnee County Public Library, Topeka

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