THE JOURNAL of the
Kansas Bar Association
July/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: Thomas E. Wright (785) 271-3166 t.wright@kcc.ks.gov
Teresa L. Watson (785) 232-7761 Topeka twatson@fisherpatterson.com
Topeka
KDJA Representative: Hon. Meryl D. Wilson (785) 537-6372 Manhattan mwilson@rileycountyks.gov
President-elect: Timothy M. O’Brien (913) 551-5734 Kansas City, Kan. Tim_O’Brien@ksd.uscourts.gov
District 1: Eric G. Kraft (913) 498-3536 Overland Park ekraft@kc-dsdlaw.com
Vice President: Glenn R. Braun (785) 625-6919 grbraun@haysamerica.com
Kip A. Kubin (816) 531-8188 Kansas City, Mo. kak@kc-lawyers.com
District 7: Matthew C. Hesse (316) 858-4924 Wichita matthew_hesse@via-christi.org
Samuel P. Logan (913) 498-2100 slogan@foulston.com
Overland Park
Laura L. Ice (316) 660-1258 lice@cfc.textron.com
Wichita
Lee M. Smithyman (913) 661-9800 lee@smizak-law.com
Overland Park
Rachael K. Pirner (316) 630-8100 rkpirner@twgfirm.com
Wichita
Hays
Secretary-Treasurer: Hon. Benjamin L. Burgess (316) 660-5607 bburgess@dc18.org
Wichita
Executive Director: Jeffrey J. Alderman (785) 234-5696 jalderman@ksbar.org
Topeka
Immediate Past President: Linda S. Parks (316) 265-7741 parks@hitefanning.com
Wichita
KBA Delegate to ABA: Sara S. Beezley (620) 724-4111 beezleylaw@ckt.net
Girard
Kansas Delegate to ABA: Thomas A. Hamill (913) 491-5500 Overland Park tahamill@martinpringle-kc.com ABA Delegate at Large: Hon. Christel E. Marquardt (785) 296-6146 marquardt@kscourts.org
Topeka
Young Lawyers Section President: Scott M. Hill (316) 265-7741 Wichita hill@hitefanning.com
District 2: Paul T. Davis (785) 843-7674 pauldavis@sunflower.com
Lawrence
Gerald R. Kuckelman (913) 367-2008 aca@journey.com
Atchison
District 3: Dennis D. Depew (620) 325-2626 dennis@depewlaw.biz
Neodesha
District 4: William E. Muret (620) 221-7200 Winfield muret@winfieldattorneys.com District 5: Martha J. Coffman (785) 271-3105 m.coffman@kcc.ks.gov
Topeka
District 6: Gabrielle M. Thompson (785) 539-3336 Manhattan gabrielle7000@sbcglobal.net
District 8: Gerald L. Green (620) 662-0537 jgreen@gh-hutch.com District 9: Hon. Kim R. Schroeder (620) 428-6500 judge263@pld.com
Hutchinson
Hugoton
District 10: Vacant District 11: Nancy Morales Gonzalez (816) 474-6550 Kansas City, Mo. ngonzalez@shb.com District 12: Christopher J. Masoner (816) 983-8264 Kansas City, Mo. cmasoner@blackwellsanders.com
J
THE OURNAL of the Kansas Bar Association July/August 2008 • Volume 77 • No. 7 www.ksbar.org
ITEMS OF INTEREST 5 11
21
KBA Honors 18 Individuals and Pro Se Task Force for Their Service to the Legal Profession and Community
KBF Recognizes Fellows and Kansas Legal Legend
KBA Board of Governors Vacancy for District 10 Seat
19
Milestones
22
Rule of Law Conference Held at Kansas History Center
Initial Interviews with Prospective Clients: How to Prevent Conflicts of Interets
Force and Sponsors
27 2008 Annual Meeting Sports Report
ESI Comes to the K.S.A.: Kansas Adopts Federal Civil Procedure Rules on Electronic Discovery By J. Nick Badgerow
4 President’s Message 5 Young Lawyers Section News 7 Law Students’ Corner 8 Members in the News 9 Dan’s Cartoon 10 Obituaries 25 Law Practice Management Tips & Tricks 36 Appellate Decisions 45 Appellate Practice Reminders 53 Classifieds 55 CLE Docket
Cover photo by Ryan Purcell
26 Thinking Ethics
27 2008 Annual Meeting Task
30
REGULAR FEATURES
Now 1/2 Off LRS Enrollment Fee! www.ksbar.org
28 A Few Memories from 2008 Annual Meeting
Our Mission: The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice. The Journal of the Kansas Bar Association is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas 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: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, P.O. Box 1037, Topeka, KS 66601-1037. The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association. For advertising information contact Suzanne Green at (800) 211-1344 or e-mail sgreen@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. COPYRIGHT 2008 Kansas Bar Association, Topeka, Kan.
The Journal Board of Editors Director of Bar Services: Susan McKaskle Catherine A. Walter, Chair Topeka Anne L. Baker Topeka Hon. Monti L. Belot Wichita Terri Savely Bezek Topeka Boyd Byers Wichita Hon. Jerry Elliott Topeka J. Lyn Entrikin Goering Topeka Connie Hamilton Topeka Mark D. Hinderks Overland Park Evan Ice Lawrence Katharine J. Jackson Manhattan Michael T. Jilka Overland Park
Casey Law McPherson Michelle Reinert Mahieu Dodge City Hon. Tom Malone Topeka Julene Miller Topeka Hon. Lawton R. Nuss Topeka Prof. John Peck Lake Quivira Richard D. Ralls Kansas City, Mo. Richard H. Seaton Manhattan Richard D. Smith Topeka Marty M. Snyder Topeka Diane S. Worth Wichita Martha Coffman, board liaison Topeka
Catherine A. Walter, Board of Editors chairperson, catherine.walter@khrc.state.ks.us Susan McKaskle, director of bar services, smckaskle@ksbar.org
From the President Thomas E. “Tom” Wright
Influence is a Key to Success
B
efore launching into my first column, a brief introduction board and our membership to assure that the strength and inseems 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 utilizWe 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 disadvanWe 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 parsociations 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 aspressure, 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 t.wright@kcc.ks.gov 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? By Scott M. Hill, Hite, Fanning & Honeyman LLP, Wichita, KBA Young Lawyers Section president
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y charge over the next year as the author of this Young Lawyers Section column is to provide direction, education, or other enlightenment to the junior attorneys of our bar. If I follow that charge to a “T,” I should only be writing to our younger members and anyone more than 35 years of age should just turn the page (I say that only figuratively; stick with me). But before I reach out directly to the young lawyers, I want to take this opportunity to direct questions and comments to the senior bar. You might ask how addressing older attorneys provides direction, education, and/or enlightenment to young lawyers? A wise man once said, “Give a man a fish, and you have fed him for today. Teach his mentor to fish, and you fed him for a lifetime.” Maybe that is not exactly how the quotation goes, but the point is we can significantly impact the young lawyer by first reminding the senior members of a thing or two. Scott M. Hill So I begin with a question: Have you hugged a young lawyer today? We have all heard the expression, “have you hugged your child today,” meaning that parents need to show physical affection to children to nurture both physical and emotional development. But how does this translate to the practice of law? I hypothesize — no better yet I promise — through professional affection, you can nurture the development of our young lawyers. How might you show professional affection? Here is my assignment to you: Make a conscious choice to positively impact the professional development of a young lawyer. For those of you who already believe you do, I ask you to reaffirm your choice. And to help all of you in that process, I offer the following suggestions: • Be present. We all know to be there when the young lawyer has her first trial or his first contract closing. But we often forget that even a small motion hearing or a client meeting can 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 couple of months. From there, follow-up every couple weeks with a casual conversation about how things are going. And never underestimate the value of an open door. Simply taking the time to be present (especially when the clock is not running) is a huge step in showing professional affection. • Be positive. Being present is certainly one step, but your attitude in your conversations is quite another. Be positive. One of the most tried and true ways to encourage successful growth is through positive reinforcement. I state the obvious:
KBA Board of Governors Vacancy for District 10 Seat A vacancy now exists for the District 10 representative on the KBA Board of Governors as the district’s former representative, Glenn Braun, has been elected and installed as KBA Vice President. District 10 represents the counties of Cheyenne, Decatur, Ellis, Gove, Graham, Jewell, Logan, Mitchell, Norton, Osborne, Phillips, Rawlins, Rooks, Russell, Sheridan, Sherman, Smith, Thomas, Trego, and Wallace. The vacancy shall be filled by appointment, thus, candidates need only to indicate their interest and send a current résumé to the KBA Executive Director as noted below. The Board of Governors (BOG) is the governing body of the Association and is vested with overseeing all business and management activities of the organization. Board members are asked to attend five meeting per year at their own expense. Meetings are held at various locations across the state and are usually held on a Friday during the months of February, April, June, September/ October, and December. BOG members are also asked to attend several related dinners and other functions as necessary. All dinners are paid for by the KBA. This appointment would be the completion of a three-year term ending in June 2009. The successful candidate will be eligible to serve two additional three-year terms. Candidates must maintain their principal place of practice or reside in the district they shall represent. Interested members should forward a current résumé to KBA Executive Director Jeffrey Alderman via e-mail at jalderman@ksbar.org or by mail to 1200 Harrison St., Topeka, KS 66612. Questions can be directed to Alderman by calling (785) 234-5696. The deadline to apply is 5 p.m. on Friday, Aug. 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
“Y
ou’ll never amount to anything.” My mother’s words cut through me like a freshly sharpened knife. I was 16, a straight-A student, and had never been in any trouble. I am the eldest of three children, raised mostly by my Puerto Rican grandmother while my mother worked menial jobs to pay the bills. My father was always in and out of the house and was notorious for his gambling addiction and struggle with alcoholism. Looking back, I realize that my mother’s self-hatred is what caused her to treat me that way. I knew then that if I ever had children, I would be a different type of parent. My opportunity to heal the wounds of my past came with the birth of my son, just months after having turned down a full ride to law school. Despite an impressive GPA from a top university, I became a single parent, was nearly evicted, and went on public assistance. Born and raised in Spanish Harlem, I was no stranger to poverty and the social ills of growing up in an economically disadvantaged neighborhood, but I was determined to break the vicious cycle. I did not want to be another statistic and I was not going to prove my mother right. I would amount to something. One way or another, I was going to pick up the pieces of my seemingly shattered life and get out of 126th Street. I became an administrative assistant at a cross-cultural advertising agency in downtown New York City. My salary was next to nothing, but I soon developed the confidence and skills-set needed to move further up the corporate ladder. My son, Aidan, became my strength. My education continued to pave the way to more promising job opportunities. But I was just getting started. In November 2006, I received a phone call from my cousin, who lived at Fort Riley with her husband and two children. I had visited her before and envied her peaceful and tranquil lifestyle. I wanted to have fewer worries and shop at Wal-Mart too. We didn’t have one of those in Harlem. My cousin said she was getting divorced and asked me to move in with her. 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 packed up our belongings and moved to Kansas. All I could think about was that I would never again have to worry about shoot outs, unleashed pitbulls, or having someone’s smelly armpit in my face during rush hour on the subway. One month later, I had learned to drive and had a job in management at a local call center. Then my cousin remarried and moved to Fort Hood, Texas. I had always felt alone in New York, but now I was literally alone — with a 3-year-old. Strangely enough, I felt feverishly
THE JOURNAL OF THE KANSAS BAR ASSOCIATION
happy. I decided to apply to law school again. I had never heard of Washburn Law before, but when I received a generous scholarship, I knew it was worth visiting. I attended a barbecue for admitted students and immediately fell in love. I saw the close-knit community and met several students who also had families. Some were even single mothers just like me! Although I was a Hispanic single mom, I felt like I could fit in and make something of my life there. Choosing to attend Washburn Law is one of the best decisions I have ever made. I will never forget introducing myself to my legal writing professor, Charlene Smith, and classmates. I told them that I had a little boy and had recently moved to Kansas from New York. Smith opened her eyes wide and asked, “Does your son live with you here?” When I said yes, she replied, “Wow, you’re a brave girl.” I had never thought of myself as brave; I was just a young mother determined to beat the odds stacked against me. I ended up receiving the highest grade in the class on our first assignment, and I recently received an A on my trial brief. Attending law school while raising my son has proved to be a great challenge. Still, it is a manageable feat. I often read my son excerpts from my Constitutional Law textbook to put him to sleep. It usually works. Aidan understands that “when mommy is a lawyer,” we will have a nice house and a puppy. He is my strength and the greatest support system ever. He often tells me, “Mommy, you need to study so you can get an A, not an F!” He is ahead of his classmates in his prekindergarten class. He is compassionate, loving, and happy. I like to think that I have something to do with that. Despite an adverse upbringing, I have been blessed with many opportunities. Just the other day, I was honored with an amazing scholarship for nontraditional female students. This summer, I am clerking at a law firm in Kansas City. The journey has been a long one and I have only just begun. But one thing is for sure: There is absolutely no place like home — the home that I have created for Aidan and me — in Kansas. n About the Author Samantha Tirado is a second-year law student at Washburn University School of Law, currently working toward her certificate in business and transactional law. She is clerking at Spencer Fane Britt & Browne LLP this summer. Tirado earned a Bachelor of Arts in political science from Syracuse University.
JULY/AUGUST 2008 – 7
Members in the News
CHANGING POSITIONS Eric J. Aufdengarten and Timothy J. Riemann have joined the Office of the Kansas Attorney General, Topeka, and Thomas E. Beall has joined the office as chief deputy. Jennifer H. Barrett has joined Long Luder & Gordon P.A., Overland Park. Michael L. Belancio has joined Graves, Bartle & Marcus LLC, Kansas City, Mo. James R. Biles has joined Sloan, Eisenbarth, Glassman, McEntire & Jarboe LLC, Topeka. Alison K. Brookins has been named as a judge for the Wichita office of Disability Adjudication and Review. Michael C. Brown has been appointed city attorney for the city of Conway Springs. Michael E. Callahan and Michael P. Winkler have joined Stinson Morrison Hecker LLP, Kansas City, Mo., and Megan E. Garrett has joined the firm’s Wichita office. Tyler A. Darnell has joined Arthur-Green LLP, Manhattan, as an associate. Wendee Elliott-Clement has joined South & Associates P.C., Overland Park. Ryan D. Farley has joined Hinkle Elkouri Law Firm LLC, Wichita.
8 – JULY/AUGUST 2008
Neely L. Fedde has joined the U.S. District Court for the District of Kansas, Kansas City, Kan., as a law clerk for Hon. Kathryn H. Vratil and a public outreach coordinator. Jason J. Fletes has been named a partner with Hill, Beam-Ward, Kruse, Wilson & Wright LLC, Overland Park. Frankie J. Forbes has been named a shareholder of Holbrook & Osborn P.A., Overland Park. Lance J. Formwalt has joined Sonnenschein Nath & Rosenthal LLP, Kansas City, Mo., as of counsel. Clinton M. Goos has joined Morris, Laing, Evans, Brock & Kennedy Chtd., Wichita. Jason T. Gray has joined Duncan, Weinberg, Genzer & Pembroke P.C., Washington, D.C., as an associate. Carolyn Y.Y. Grayson is now with Newman, Reynolds & Riffel P.A., Leawood. Leslie A. Greathouse has joined Spencer Fane Britt & Browne LLP, Kansas City, Mo. Matthew P. Harlow has joined Embarq, Overland Park. Michelle D. Haskins has joined Constangy, Brooks & Smith, Kansas City, Mo., as a partner and Megan K. Walawender has also joined the firm.
David W. Hauber has been appointed as a Johnson County District judge by Gov. Kathleen Sebelius. Jennifer Hays has joined Valentine & Zimmerman P.A., Topeka, as an associate. Paul R. Hoferer has been named vice president and general counsel for Burlington Northern Sante Fe Railway, Forth Worth, Texas. Jane C. Holt has joined the Kansas Governmental Ethics Commission, Topeka. Christopher A. Holzman has joined Maughan & Maughan L.C., Wichita. Thomas H. Johnson has joined Petefish, Immel, Heeb & Hird LLP, Lawrence. Peggy C. Kittel has been appointed Douglas County District Court judge by Gov. Kathleen Sebelius. John J. Knoll has joined the City of Overland Park Attorney’s Office. Roger W. Lampson has been appointed chief judge of the 29th Judicial District, Kansas City, Kan. Jonah W. Lock has joined the Quitmeier Martsching Law Firm, Prairie Village. Jeremy G. Mai has joined Kansas Legal Services, Kansas City, Kan. Kevin D. Mason has joined White Goss Bowers March Schulte & Weisenfels P.C., Kansas City, Mo.
THE JOURNAL OF THE KANSAS BAR ASSOCIATION
Members in the News William H. Meyer has joined the Jones Law Firm P.A., Overland Park. Michael L. North has joined the Sedgwick County Counselor’s Office, Wichita. Kathryn O’Shea has joined Schmitt Manz Swanson & Mulhern P.C., Overland Park. William H. Pitsenberger has become of counsel with Newbery, Ungerer & Hickert LLP, Topeka. Jenny R. Redix has joined the Henning Law Firm P.C., Kansas City, Mo., as an associate. Calvin D. Rider has joined Brown Dengler Bood & Rider L.C., Wichita, as of counsel. Todd Rohr has joined Counsel Group LLC, Kansas City, Mo. Jeffrey D. Rowe joined Horn Aylward & Bandy LLC, Kansas City, Mo. Kathleen A. Ryan has joined H&R Block, Kansas City, Mo. Melissa D. Rutton has joined the City of Overland Park as an assistant prosecuting attorney. Mindy D. Smith has joined the Office of the Chapter 13 Trustee, Kansas City, Mo. Sidney R. Thomas has joined St. Francis Community Service, Garden City. Timothy W. Triplett has joined Black & Veatch, Overland Park. Jennifer B. Wieland has joined Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, Kansas City, Mo. Amy E. Wilbur has joined General Dynamics Armament and Technical Products, Charlotte, N.C.
CHANGING LOCATIONS Account Recovery Specialists Inc. has moved to 3505 N. Topeka, Wichita, KS 67219. Barnett Law Firm Chtd. has moved to 816 Ann Ave., Kansas City, KS 66101. The Bass Family Law Firm Inc. has moved to 8014 State Line Rd., Ste. 100, Leawood, KS 66208. Boysen McEachen P.A. has moved to 9401 Nall Ave., Ste. 100, Overland Park, KS 66207. The Law Office of James E. Carpenter P.A. has moved to 816 Ann Ave., Kansas City, KS 66101. Chad B. Cook has started his own firm, Cook Law Group LLC, 13795 S. MurLen Rd., Ste. 203, Olathe, KS 66062. Dickson and Pope P.A. has moved to 11115 Ash St., Leawood, KS 66211. Entz, Entz & Laskowski LLC has moved to 6342 S.W. 21st St., Ste. 101, P.O. Box 67026, Topeka, KS 66615. Rebekah L. Gaston has started her own firm, Gaston Law Office, 157 S. 7th St., Salina, KS 67401. Carl W. Hartley and Sandra K. Hartley have started their own firms, Carl W. Hartley LLC and Sandra K. Hartley LLC. The firms are located at 16206 W. 319th St., Paola, KS 66701. Jeremy M. Houck has started his own firm, Law Office of J. Morgan Houck LLC, 1525 S.W. Topeka Blvd., Ste. D, Topeka, KS 66610. Gregory D. Keith has started his own firm, P.O. Box 20838, Wichita, KS 67208.
Bradley G. Korell has moved to 2525 S. Lamar Blvd., Ste. 12, Austin, TX 78704. Kramer & Hand LLC has moved to 712 Maple St., Hillsboro, MO 63050. R. Michael Latimer has started his own firm, R. Michael Latimer, Attorney At Law, 11011 King St., Ste. 237, Overland Park, KS 66210. Tiana McElroy and Richard A. Medley have moved to 121 W. 8th St., Coffeyville, KS 67337. The Law Offices of Marcia L. Montgomery P.A. has moved to Corporate Woods, Bldg. 11, 10875 Benson, Ste. 120, Overland Park, KS 66210. Robert I. Nicholson Jr. has started his own firm, Nicholson Law Office L.C., 26 W. Peoria, P.O. Box 407, Paola, KS 66071. Jill D. Olsen has started her own firm, the Olsen Law Firm LLC, 1044 Main St., Ste. 400, Kansas City, MO 64105. Peterson Law Offices LLC has moved to 8400 W. 110th St., Ste. 450, Overland Park, KS 66210. The Law Office of Smith Coonrod has moved to 7001 W. 79th St., Overland Park, KS 66204. Southeast Kansas Legal Associates P.A. has moved to 104 W. 8th St., Coffeyville, KS 67337. Jeffrey L. Stowell new address is P.O. Box 11182, Denver, CO 80211. Editor’s note: It is the policy of The Journal of the Kansas Bar Association to include only persons who are members of the Kansas Bar Association 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 gratitude. While meaningful positive critique often takes more time and effort than a short negative one, being positive — even if it is a positive spin on a shortcoming — is worth the added time and effort. A young lawyer who is reassured in her skills is going to try harder to continue to please you. This confidence will pay off to you in the long-run in terms of loyalty and dedication to the task at hand. • Be consistent. Positive feedback and presence should occur more often than the yearly evaluation. Like any other learned behavior, success can be achieved through repetition. When something is done well, let the young lawyer know. When something falls below your expectation, be consistent in your criticism (albeit with a positive message). Having consistency in your feedback allows the young lawyer to modify his behavior to meet your expectations. But more importantly, consistency shows that you are focused enough on his development to remember and reinforce your expectations. THE JOURNAL OF THE KANSAS BAR ASSOCIATION
• Be real. Sincerity in praise is key. If you are the nonpraising type (you know who you are — and that is OK), this isn’t to say that you should try to force yourself to exude admiration. The last thing that a young lawyer needs is to feel belittled. Be honest and be real. Don’t go out of your way to praise every little accomplishment. It often appears condescending or sarcastic. In other words, be positive and be present, but don’t over do it. So maybe hugging would not be appropriate in your workplace (I’m certainly not promoting office physical affection). Maybe hugging is just not your style. There are, however, other ways to show this professional affection. Be present. Be positive. Be consistent. Be real. At the very least, try a pat on the back once in a while when it is deserving. Or even an “atta girl/ boy” or just a “good job.” Anyway you want to do it, reach out and hug a young lawyer. They will thank you for it, both today and in years to come. n Scott Hill may be reached at (316) 265-7741 or by e-mail at hill@hitefanning.com. JULY/AUGUST 2008 – 9
Obituaries John K. Bremyer John K. Bremyer, 88, McPherson, died April 17. He was born in McPherson on April 5, 1920, attended McPherson public schools and the University of Kansas. Bremyer left KU Law School during World War II to join the Navy. He returned from the service and finished his law degree at the University of Kansas. Bremyer returned to his hometown of McPherson and began practicing law in 1946. He co-founded the Bremyer & Wise law firm with Robert W. Wise in 1970 and practiced law for more than 60 years before taking an of counsel role with the firm. Outside the law, Bremyer was involved in many entrepreneurial projects and business ventures. He served on the executive committee of the McPherson Bank & Trust and on the board of directors of Pioneer Savings and Loan, becoming president after his father’s death. In 1959, he and other community leaders founded the McPherson Industrial Development 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.
versity of Missouri in Columbia, and later graduated from the University of Kansas School of Law in 1952. She taught business at Winchester High School and Jefferson County North High School in Winchester. She later practiced law in Oskaloosa with her husband at the Swoyer & Swoyer Law Firm until November 2006. She and her husband also owned and operated County Seat Variety Store in Oskaloosa from 1981 to 2003. She was a member of the Daughters of the American Revolution, the Oskaloosa Chapter of the Order of the Eastern Star, the Kansas National Education Association, and was a lifetime member of the Kansas Bar Association. Survivors include a son, Karl, Winchester; two brothers, Harry A. Truman and Gilbert Truman, both of Louisburg; four grandchildren; and one great-grandchild. She was preceded in death by her husband, James F. Swoyer Jr.; her parents; two brothers, J.C. and Fred Truman; and a sister, Callie Truman. n
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 Commerce, 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; daughters, 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 Oskaloosa. 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 Uni10 – JULY/AUGUST 2008
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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 subdecades 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 culand high ethical standards and has been a tural life of the community and many acgreat 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 Capitalin 1951 and with a Juris Doctor in 1956, Journal quoted former Gov. Mike Hayden and in 1990, he graduated from the Unisaying Six brought “to the court a keen intelversity of Virginia with a master’s degree lect, an immeasurable sense of fairness, high of the judicial process. After his graduaintegrity, 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 jusan 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 and Ellsworth and became a partner beJustice Fred N. Six to each case he heard, and he was careful in fore leaving in 1961 to become an associcrafting 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 Emergenerations 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)
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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 Scholcareer. 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 corher city, and her state by spending countporate administration and human resources less hours serving various bar and profesfor Spirit AeroSystems in Wichita. She previsional 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 Wichto 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 FounFlentje graduated from the University of dation. She currently serves on the Kansas Kansas with a Bachelor of Arts in mathematCommission 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 UniWichita bar associations and the Wichita versity. She has received a number of recogniWomen 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 Asthe board of The United Way of the Plains. sociation’s Howard C. Kline Award, and the Previously, she served on the boards of the YWCA’s Woman of Vision Award, and she Gloria Farha Flentje 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 scimember 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 rein 1977, where he was the note and comporter. 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 execuits 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 porhaving 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 Coron the board of directors of Leadership Lawporation, Banking and Business; and Bankrence, the Lawrence Chamber of Commerce, ruptcy and Insolvency Law sections he previand the Lawrence Public Library; served two Calvin J. Karlin ously served on the Fee Dispute Resolution terms as president of Site Council for Lawand 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
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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 meritorious service to her profession and the Kansas Bar Association, according to her former supervising attorney Mary Beth Blake. Bennett serves as a mentor and teacher to those around her and encourages other attorneys to be active in the bar association. Bennett is the director of professional development at Washburn University School of Law, advising law students and alumni on career options, job search strategies, and making the transition to professional employment. Bennett also coordinates continuing legal education programs for the law school and is an active member of the KBA Continuing Margann M. Bennett Legal Education Committee. Prior to joining Washburn, Bennett practiced at Hershberger, Patterson, Jones & Roth in Wichita and at Shook Hardy & Bacon in Overland Park and Kansas City, Mo. Bennett also served as a corporate account manager with Thomson-West (Westlaw) from June 2001 to early 2003. Bennett graduated from the University of Kansas with a Bachelor of Arts in 1991 and a Juris Doctor in 1996. Natalie G. Haag currently serves as the second vice president, director of governmental affairs, and assistant general counsel for Security Benefit Corp. in Topeka. Prior to joining Security Benefit, Haag served as the chief of staff, director of governmental affairs, and general counsel to former Kansas Gov. Bill Graves. Haag has also served as executive director of the Board of Indigents’ Defense Services and as director of the State Gaming Agency. She was a prosecutor for four years and spent Natalie G. Haag six years working for law firms handling insurance defense litigation. She earned her Juris Doctor from Washburn University School of Law in 1985 and a Bachelor of Science in agriculture from Kansas State University in 1982. Stacey Janssen has spent her career helping to protect the rights of the elderly and disabled. She is a sole practitioner in Johnson County, practicing in the areas of elder and disability law. Prior to entering private practice, Janssen worked for Kansas Legal Services, providing legal services to Kansas seniors. She also co-founded the Kansas Elder Law Hotline. Janssen has served as an intern supervisor and guest lecturer for the University of Kansas Elder Law Clinic and coTHE JOURNAL OF THE KANSAS BAR ASSOCIATION
authored the “Adult Care Homes” chapter of the Kansas Bar Association’s Long-Term Care Handbook. She is a frequent speaker at community and continuing legal education events, speaking on the topics of Medicaid, patient’s rights, ethics, and estate planning. Janssen is a member of the Kansas Bar Association Elder Law Section, the Johnson County Bar Association, the Kansas Women Attorneys Association, the National Academy of the Elder Law Attorneys, and is an officer in the Kansas Chapter of the NationStacey Janssen al Academy of Elder Law Attorneys. Janssen received both her Bachelor of Arts in 1985 and her Juris Doctor in 1988 from the University of Kansas. C. Stanley Nelson enjoys being “of counsel” with Hampton & Royce L.C. in Salina. At 83, he considers it a privilege to be able to go to the office every day and be involved in legal matters. According to Matthew D. Keenan of Shook, Hardy & Bacon, who nominated Nelson, he is “a model of solid character.” Nelson has worked for the same firm since he started the practice of law in February 1951. He earned his undergraduate and law degrees at the University of Kansas, but served three years in the Marine Corps in between obtaining his degrees. He attended his first Kansas Bar Association Annual Meeting 57 years ago, and he was responsible for maintaining the firm’s hospitality room from morning till night. Nelson’s main area of practice has been in civil litigation, but he also devoted considerable time with workers’ compensation claims. In 1978, C. Stanley Nelson Nelson was inducted into the American College of Trial Lawyers and he was recently appointed to serve as special administrative law judge by the director of Workers’ Compensation. He also worked as board member and/or president of various community service organizations, including the Salina Recreation Department, the Salina Public Library, and the Salina YMCA. Nancy A. Ogle, Wichita, has a solo practice where she focuses on providing legal research and writing services to other attorneys while also managing her own cases, primarily appeals. Ogle is also an adjunct professor at Friends University, where she teaches courses on legal research and writing. (Continued on next page) JULY/AUGUST 2008 – 13
Ogle has been a member of the Kansas Bar Association for several years and currently serves on its Continuing Legal Education Committee. In addition, she is a member of the Wichita Bar Association (WBA), Kansas Association of Defense Counsel, and the Kansas (KWAA) and Wichita Women Attorneys (WWAA) associations. Ogle has held several positions on the boards of the KWAA and WWAA and has been president of both associations. She has served on numerous WBA committees, including being a member of the Baro-Meter Committee for more than Nancy A. Ogle 10 years and Bar-o-Meter editor in 2001-2002. Ogle received the WBA’s President’s Award for Outstanding Service in 2000 and 2005. She is a frequent contributor to legal publications in the state, and her articles have appeared in The Journal of the Kansas Bar Association, Kansas Defense Journal, Kansas Municipal Law Annual, Washburn Law Journal, and Bar-o-Meter. In recent years Ogle has increasingly given her time presenting at CLEs and seminars throughout Kansas on subjects ranging from appellate practice and legal research to legal issues related to quilt making and design. Ogle has served on the Wichita Public Library Board since 2001 and has been vice president of the board since 2005. Ogle worked as a librarian for 10 years prior to going to law school. She received her bachelor’s degree from the University of Kansas and her juris doctorate from Washburn University 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.
Steven A. Schwarm litigates, teaches, and writes extensively in the area of legal ethics and administrative law with an emphasis on health care licensing, regulatory, and compliance matters. He is a frequent ethics presenter for the Kansas Bar Association. Schwarm is also the author of numerous health care administrative books and articles and is recognized as a leader in the area of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Emergency Medical Treatment and Labor Act. He co-authored the HIPAA Privacy ClearViews — Digital Desk Reference and the American Bar Association’s textbook “Health Care Privacy” chapter in Biotechnology and the Law. Schwarm is a shareholder in the Health Care Law Group of Polsinelli Shalton Flanigan Suelthaus P.C. Since entering private practice in 1992, Schwarm has represented physicians, hospitals, and other Steven A. Schwarm health care providers and entities before state and federal administrative agencies throughout the country. Additionally, Schwarm has represented numerous health care providers in civil malpractice defense litigation on both the state and federal level. He has also worked for the state of Kansas as an assistant attorney general and as litigation counsel and general counsel for a state agency. He is a 1987 honors graduate of Washburn University School of Law.
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 prepared the fourth edition of the handbook. Alfred Schroeder and then as director of the Court She is a member of the Board of Examiners of of Appeals Central Research Staff. Green has been Court Reporters, the Washburn Law School Alumni the clerk of the Kansas Supreme Court and Court of Association Board of Governors, past chair of the Appeals since 1991. Continuing Legal Education Commission, and is a In her capacity as clerk, in addition to case processing responsibilities, Green serves as secretary to Fellow of the Kansas and American bar foundations. the Commission on Judicial Qualifications, the CliGreen has actively served on committees of the Naent 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 Kan14 – JULY/AUGUST 2008
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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 the American Bar Association (ABA) Wills for Heroes Program, which is an ABA Young Lawyers Division service project. Hill received her Bachelor of Arts in 2000 from the University of Notre Dame and her Juris Doctor from Washburn University School of Law in 2003. She is licensed to practice in the U.S. District Court for the District of Kansas and the Tenth U.S. Circuit Court of Appeals. Hill is a member of the American, Kansas, and Wichita bar associations and the Kansas and Wichita (WWAA) Women Attorneys associations. She is currently serving as president-elect of both the Wichita Young Lawyers Association and Jennifer M. Hill WWAA and secretary-treasurer for the KBA Young Lawyers Section. She previously served as vice president (2006-2007) and social chair (2005-2006) of the Wichita Young Lawyers; program director (2006-2007), secretary (2005-2006) and special project chair (2004-2005) for the WWAA; and social chair (2006-2007) for the KBA Young Lawyers. Hill is an active member of the Junior League of Wichita; president of the Notre Dame Alumni Club of Wichita; and is a staff writer for the Bar-o-Meter, the Wichita Bar Association’s monthly newsletter. In addition, she is a regular volunteer at the Lord’s Diner and raised more than $700 for the Muscular Dystrophy Association’s Lock Up for Kids in 2007. Hill was named to the Wichita Business Journal’s “Top 40 Under 40” in 2007.
H, L B, J W attorneys at law
A A P I C D M C DUI T W’ C 3649 SW Burlingame Rd. Topeka, Kansas 66611 • (785) 267-2410 THE JOURNAL OF THE KANSAS BAR ASSOCIATION
Scott M. Hill received his Associate of Arts in 1998 from Independence Community College, his Bachelor of Arts in 2000 from Pittsburg State University, his Master of Business Administration in 2003 from Washburn University, and his Juris Doctor in 2003 from Washburn University School of Law. Hill is licensed to practice law in Kansas, the U.S. District Court for the District of Kansas, and the Tenth U.S. Circuit Court of Appeals and is currently practicing law as an associate with Hite Fanning & Honeyman LLP, Wichita. Hill is a member of the Wichita Bar Association and serves on the WBA Technology and Bar-o-Meter committees, as well as belonging to the Wichita Young Lawyers AsScott M. Hill sociation. Hill is also a member of the Kansas Bar Association and has previously served on the Annual Meeting Task Force. He is the 2008-2009 president of the KBA Young Lawyers Section and is a member of the American Bar Association and its Young Lawyers Division. Hill is a Fellow of the Kansas Bar Foundation and is a member of the Kansas Association of Defense Counsel. He is active in his community and is a member of the Leukemia and Lymphoma Society Kansas Chapter board of trustees. He is also a community classroom volunteer for the Wichita Junior Achievement and is a member of the Young Professionals of Wichita. Hill lists his hobbies as running and cycling, completing 28 marathons, the Heartland 100-mile ultramarathon in 23:46:46, and two Century Bike Rides. (Continued on next page)
K C R A Kansas Court Reporters Association is committed to promoting and maintaining the highest standards of verbatim reporting, quality services, professional ethics, and advocating continuing education, as well as the utilization of state-of-theart technology.
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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 instances, 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 purposeSe 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 outtask of compiling an inside of court.” Further structional and practical the guide provides a list “Pro Se Guide” for use by of agencies that can aspro se litigants and others sist an individual with in understanding the proseeking legal advice and cess of filing, prosecuting, locations for legal reand 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, completdue to some individu(Front l-r) Karen Jannaman, Hon. David J. Waxse, and Michele Tunnell ing flowcharts and other (Back row l-r) Rachel Lyle, Jason Bruhn, Kim Leininger, Linda South, Casey als learning through a graphics to make the Tourtillott, Mary Hale, and Steve Schwarm. visual method and othguide 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.
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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, Alderson, Weiler, Conklin, Burghart & Crow LLC in Topeka. His practice focuses primarily on family law. Alderson graduated from Washburn University School of Law in 1973 with his juris doctorate and received his master’s of law degree in taxation from the University of Missouri-Kansas City School of Law in 1983. Prior to joining Alderson in 1983, he was general counsel for the Kansas Department of Revenue from 1979 to 1983. Alderson has been a member of the Kansas Bar Association since 1983 and is past president of the Administrative Law Section and currently serves as chair of the Fee Dispute Resolution Panel. He served as president of the Alan F. Alderson Topeka Bar Association (TBA) 19951996, served nearly 10 years (two years as chair) on its Professional Ethics and Grievance Committee, and serves as the current chair of its Family Law Committee. Alderson has also served on the Judicial Council Advisory Committee on Administrative Law
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for 15 years; has been a member of the Third Judicial District Nominating Commission since 1999; and has served two terms as president of Topeka’s Kansas Legal Services Advisory Board, where he has been a board member for nearly 20 years. Alderson is a recipient of the KBA’s 2004 Pro Bono Award and the TBA’s Pro Bono Award in both 1992 and 1998 and its Professionalism Award in 2000.
Paul E. Dean
Paul E. Dean grew up in Madison and attended the University of Kansas, where he received his bachelor’s degree in 1994 and his juris doctorate in 1997. For the last 11 years, he has been a general practitioner with the Emporia firm of Sherman & Dean, with a concentration on criminal law, contracts, and real estate law. He has served as county counselor for Greenwood County for the past seven years. (Continued on next page)
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Pro Bono Certificates of Achievement (continued from Page 17)
Frederick W. Godderz is a sole practitioner in Burlingame and has been in private practice since 1975. Godderz graduated from Washburn University in 1966 and its law school in 1969. He is a member of the Kansas and Osage County bar associations.
before the Supreme Court of Missouri, the U.S. District Court 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 Organization of Defense Lawyers.
Frederick W. Godderz
Aaron C. McKee joined Kimberly J. Ireland in forming the Lenexa law firm McKee & Ireland LLC in February 2007. Prior to starting the firm, McKee was employed by Baker, Sterchi, Cowden & Rice LLC. McKee graduated from the University of Missouri with a Bachelor of Science in Business Administration in marketing, finance, and banking and logistics in 1994, Photo not from Washburn University School of available 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 children’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.
Photo not available
Kimberly J. Ireland
Holly A. Smith
Holly A. Smith grew up in Snowmass, Colo., and came to Topeka in 1998. She earned her Bachelor of Science in criminal justice in 2002 from Washburn University and her Juris Doctor in 2005 from the University of Kansas School of Law. Smith practiced primarily family law right out of law school with the Alderson Law Firm in Topeka. She is currently a real estate transactional attorney with Foreclosure Management Co. in Overland Park. n
Kimberly J. Ireland joined Aaron C. McKee in forming the Lenexa law firm McKee & Ireland LLC in February 2007. Prior to starting the practice, she was employed by Baker, Sterchi, Cowden & Rice LLC. Ireland graduated 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
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Milestones 50 Years of Service David G. Arst practices in Wichita, where his legal career includes serving as a Wichita Municipal Court judge, an assistant county counselor, and a Chapter 7 Bankruptcy Trustee for more than 16 years. After graduating from Carleton College he attended the University of Kansas School of Law, earning his juris doctorate in 1958. He has served as a president and board member of the Wichita Branch of Kansas Legal Services, president of the board of the Wichita-Sedgwick County Historical Museum, and chairman of the board David G. Arst of the Wichita YMCA. Arst is a triathlete and has run more than 20 marathons. He also climbs at least one 14,000-foot mountain in Colorado each year.
Robert T. Cornwell has his own practice in Wichita. He served two years in the U.S. Army prior to attending the University of Chicago Law School, where he graduated in 1958 with a Juris Doctor.
Robert T. Cornwell
Lavone A. Daily has her own firm in Kansas City, Kan. She graduated from the University of Kansas in 1962, majoring in bacteriology and biochemistry. Daily then worked as a microbiologist to pay her way through the University of MissouriKansas City School of Law. After graduating in 1957 with her law degree, she opened her private practice. During the 1960s, Daily raced sports cars, and Judge William McHale referred to her as “Racoon” because of the sunburn imprint around her eyes from the racing goggles. She was the first female prosecutor in Wyandotte County and in the state of Kansas, 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 Municipal Court judge pro tem. THE JOURNAL OF THE KANSAS BAR ASSOCIATION
Gerald L. Goodell is of counsel with the firm Goodell, Stratton, Edmonds & Palmer in Topeka. Goodell graduated from Washburn University School of Law in 1958. In 1984, he was elected to the American College of Real Estate Lawyers and has served as editor of the Kansas Bar Association (KBA) Real Estate Handbook. He is also listed as a leader in real estate law in Best Lawyers in America. Goodell has served as president of the KBA and the Topeka Bar Association, and he has served as chairperson of the Kansas Board of Law Examiners and the Judicial Council Probate ComGerald L. Goodell mittee. He currently serves on the Kansas Judicial Council and is a member of the Kansas Ethics Commission. He has been awarded the Washburn Law School Distinguished Service Award, the KBA Distinguished Service 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 University School of Law. Manuel “Manny” Mendoza is originally from Independence, Kan., where he played football in high school and at Independence Junior College. He then attended Baker University where he was a member of the football team and Sigma Phi Epsilon fraternity. He graduated with a degree in business administration. After graduating from Baker, Mendoza served in the Army Reserves and graduated from Washburn University School of Law in 1958, beginning a career that spanned 43 years with State Farm Mutual Automobile Insurance Co., eventually attaining the position of senior claim counsel Manuel “Manny” in the company’s Bloomington, Ill., Mendoza headquarters. Since retiring, he keeps involved in academia and the community, and is currently serving on the Washburn University School of Law Board of Governors, serves on the McLean County, Ill., Jail Review Committee, and is a member of the American Civil Liberties Union and McLean County AIDS Task Force. His wife, Margot, and three children are graduates of Washburn Law School as well. (Continued on next page)
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Milestones Richard H. Rumsey currently has his own firm in Wichita. Rumsey graduated from the University of Kansas with a Bachelor of Arts and with a Doctor of Laws in 1958. He has served as an officer, director, or president for various church and civic organizations, including the Wichita Jaycees, the local chapter of the American Cancer Society, the Haworth Toastmasters Class, and the Sedgwick County Master Gardeners. Currently, Rumsey is a trustee and vice chairman of the Kansas State Sedgwick County 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 2007. Hon. Gerald L. Rushfelt serves as a magistrate judge for the U.S. District Court of Kansas in Kansas City. Rushfelt attended Graceland College but graduated from the University of Kansas with his undergraduate and law degrees. Rushfelt has served as president of both the Johnson County Bar Association and the Earl E. O’Connor American Inn of Court. He has also served as a critique instructor in trial practice at the University of Kansas School of Law and as a faculty memHon. Gerald L. ber of the National Institute of Trial Rushfelt Advocacy. He is a fellow of the American College of Trial Lawyers, the American Board of Trial Advocates, and the American Bar Foundation. Carl W. Shewmaker of Eureka obtained a Bachelor of Science in foreign service from Georgetown University School of Foreign Service and a law degree from Georgetown University School of Law. During World War II, he served as an Army paratrooper during the occupation of Japan and in counterintelligence during the occupation of Austria. Shewmaker is a member of the Veterans of Foreign Wars, various Masonic bodies, Friends of Eureka Public Library, the Eureka Kiwanis club, and Great Carl W. Shewmaker Plains Diabetes Research Inc. Robert T. Stephan is a private practitioner in Lenexa, graduating from Washburn University School of Law in 1957 with a Juris Doctor. Stephan then served as a municipal court judge 20 – JULY/AUGUST 2008
Robert T. Stephan
and district court judge in Wichita. In 1979 Stephan was elected the Kansas Attorney General and continued to serve until 1995. Stephan has also served as the president for the National Association of Attorneys General, and as the chair for the Governor’s Domestic Violence Fatality Review Board. He received the Smiling Bull Award from the Leavenworth Bar Association and the Fred Ellsworth Award from the University of Kansas Alumni Association.
60 Years of Service Elvin D. Perkins spends his time working on civic projects in Emporia. Perkins graduated from Emporia College with a bachelor’s degree and then served in the U.S. Navy for three years before obtaining his law degree from Washburn University School of Law in 1948. Upon admission to the bar, he became a sole practitioner with an active general practice. Perkins has been active in the Kansas Bar Association and has served as chairman of the Continuing Legal Education (CLE) Committee Elvin D. Perkins and the Kansas CLE Commission. He played an instrumental part in establishing mandatory CLE in Kansas.
50-Year Certificate photos and biographies not available Hon. Paul M. Buchanan Donald L. Burnett Heywood H. Davis Richard V. Foote Robert D. Hecht Alvin D. Herrington Charles F. Lay Jacob F. May Jr.
Calvin L. McMillan Thomas L. Medill Jr. William C. Nolton Robert K. Scovel Frank G. Spurney Jr. Wayne T. Stratton George D. Wagstaff Robert Wunsch
60-Year Certificate Photos and biographies not available John E. Altenborg Oscar S. Brewer Hon. Marion W. Chipman William K. Clark Kenneth H. Hiebsch
Richard K. Hollingsworth Robert Martin Keith U. Martin Marion P. Mathews
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KBF Recognizes Fellows and Kansas Legal Legend ... serving the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor, and integrity of the legal system by improving its accessibility, equality, and uniformity, and by enhancing public opinion of the role of lawyers in our society. Kansas Law Center 1200 S.W. Harrison St. P.O. Box 1037 Topeka, Kansas 66601-1037 Telephone: (785) 234-5696 Fax: (785) 234-3813 Web site: www.ksbar.org OFFICERS Sarah B. Shattuck, Ashland President John David Jurcyk, Roeland Park President-elect James D. Oliver, Overland Park Secretary-Treasurer Bruce W. Kent, Manhattan Immediate Past President BOARD OF TRUSTEES Hon. Richard L. Bond, Overland Park Robert M. Collins, Wichita Daniel H. Diepenbrock, Liberal James C. Dodge, Sublette Kenneth J. Eland, Hoxie Joni J. Franklin, Wichita Terence E. Leibold, Lawrence David K. Markham, Parsons Edward J. Nazar, Wichita Randall J. Pankratz, Newton H. Douglas Pfalzgraf, Wellington Hon. Ronnie L. Svaty, Ellsworth J. Ronald Vignery, Goodland Kenneth W. Wasserman, Salina James C. Wright, Topeka Amy Fellows Cline, Wichita Young Lawyers Representative Katherine L. Kirk, Lawrence Kansas Association of Justice Representative Susan G. Saidian, Wichita Kansas Women Attorneys Association Representative Vaughn L. Burkholder, Overland Park Kansas Association of Defense Counsel Representative Sara S. Beezley, Girard Kansas Bar Association Representative Michael P. Crow, Leavenworth Kansas Bar Association Representative David J. Rebein, Dodge City Kansas Bar Association Representative EXECUTIVE DIRECTOR Jeffrey J. Alderman, Topeka
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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 more than 100 attendees at Topeka’s recognized; and one new Fellows Diamond Top of the Tower Club. Attorneys were cel- was recognized for giving $10,000-$14,999. ebrated for giving back to their communities The highlight of the night was the presenand one was honored with the prestigious tation of the Robert K. Weary Award to the 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 by the Fellows as the new 2008-2009 presi- for the bar and for himself. His service to our dent of the Board profession is inof Trustees while spirational,” said Bruce W. Kent, Shattuck. 2007-2008 presiThe KBF Board dent, was thanked of Trustees estabfor his work. Durlished the Robert ing Kent’s tenure, K. Weary Award he worked to conin 2000 to rectinue the efforts to ognize lawyers or build the Foundalaw firms for their tion through reexemplary service cruitment of new and commitment Fellows in addito the goals of the tion to laying the Kansas legal legend, Hon. Wesley E. Brown, Kansas Bar Foungroundwork for garciously accepted the Robert K. Weary Award at dation. This award planned giving. At the annual Fellows Dinner. does not need Shattuck’s request, to be given each Kent will continue to develop the giving pro- year, only when the Board of Trustees and gram as its chair. Kent has a passion for es- Awards Committee decide that the award is tablishing a planned giving program to enrich earned. Despite Weary’s objection, the Board the KBF’s future. of Trustees selected him as the initial recipiThe night saw three members of the Board ent of the award in recognition of his decades of Trustees fulfill their terms: Eric Kraft, Te- of service to his community, the Kansas Bar resa Meagher, and KBA past president Sally Foundation, and the legal profession in KanPokorny. Newly appointed board members sas. Weary passed away in 2001, although his 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. trict 6; Hon. Richard L. Bond, District 1; and Norton, to Justice Robert L. Gernon in 2005, David J. Rebein, KBA representative. Reap- Mikel L. Stout in 2006, and was presented pointed board members include Kenneth J. posthumously to Daniel J. “Dan” Sevart in Eland, at large; Terence E. Leibold, District 2; 2007. David K. Markham, District 3; H. Douglas The KBF continues to do great things Pfalzgraf, District 4; Randall J. Pankratz, Dis- statewide. From scholarships to law-related 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 FoundaCrow, 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 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 and are now eligible to move upward to other mwickham@ksbar.org. n levels of giving. Twenty-six new Fellows Silver
MANAGER, PUBLIC SERVICES Meg Wickham, Topeka
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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
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he Kansas Bar Association (KBA) and Kansas Bar Foundation along with the University of Kansas School of Law and Washburn University School of Law hosted a “Rule of Law” conference on May 15, 2008, at the Kansas History Center in Topeka. The idea for the conference came from past president of the American Bar Association, William Neukom, who had a goal for all 50 states to hold similar conferences during his term as president. Four pilot programs were held in 2007 by the states of Washington, Missouri, North Carolina, and Tennessee. After hearing of their successes and learning of the program, KBA President Linda Parks (2007-2008) immediately wanted to see that Kansas followed suit. The idea behind the “Rule of Law” conferences came from the World Justice Project, begun by the then ABA PresidentElect Neukom. That project was created to make advancing the rule of law a mainstream goal of the legal community and of all other major professions and disciplines. According to Neukom, the rule of law is the “foundation of all thriving societies and is central to all efforts to ensure human security, fight poverty, eradicate corruption, improve public health, and enhance public education both in the United States and around the world.” The World Justice Project defines the rule of law as: (1) a system of self-government in which all persons, including the government, are accountable under the law; (2) a system based on fair, publicized, broadly understood, and stable laws; (3) a robust and accessible process in which rights and responsibilities based in law are enforced impartially; and (4) diverse, competent, independent, and ethical lawyers and judges. Parks formed a committee last fall consisting of Parks, Dean Tom Romig and Professor Bill Rich from Washburn Law School, Dean Gail Agrawal and Professor Steven McAlister from KU Law School, Appellate Court Judge Christel Marquardt, incoming KBA President Tom Wright, KBA Executive Director Jeff Alderman, and Past KBA President Sara Beezley, as chair. The committee’s focus was to model the conference after the pilot programs but to specifically address the issues of particular importance to the citizens of Kansas. The committee was conscious of the need to put together a program that would 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
Next on the program was a panel discussion on the topic of “Why the Rule of Law Matters in Our State and in the Global Community,” moderated by Judge Marquardt. The panel members were Maggie K. Fleming, human rights legislative assistant and aide to the Office of Sen. Sam Brownback; Howard R. Fricke, former Chief Executive Officer of Security Benefit Group; Sue Harper Ice, public member on the Kansas State Board of Healing Arts; Hon. J. Thomas Marten, U.S. District Court for the District of Kansas; and Tom Shine, business editor of the Wichita Eagle. The panel answered questions from the audience ranging from what we as citizens in Kansas can do to help victims in third world countries to improving the understanding of our youth on basic civics issues. After the panel discussion, the guests were divided into “breakout” groups to discuss the importance of the rule of law to each attendee in his or her individual profession. We were fortunate to have six members of the Kansas Court of Appeals, Judges Henry W. Green Jr., Richard D. Greene, Stephen D. Hill, Patrick D. McAnany, G. Joseph Pierron Jr., and Melissa Taylor Standridge, facilitate the small groups. The judges then reported back to the group as a whole. Each small group seemed to conclude that there was a lack of education on the importance of the rule of law in our public schools, that there are concerns with access to justice, especially for the poor and the minorities, and there are problems with the system of electing judges. The event concluded with the luncheon address given by Dean David L. Sollars, of the Washburn University School of Business, who spoke on “The Economic Importance of the Rule of Law,” emphasizing how countries that follow the rule of law, tend to be more economically stable and prosperous The Kansas Bar Association and Foundation and the Washburn and Kansas schools of law would like to express their appreciation to all who participated as part of the program or as an attendee. Discussions have been had about a follow up program, or programs, that would try to educate the public on the importance of the rule of law to all of our citizens, including going into high schools and emphasizing the importance of students understanding how the three branches of government work. n
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Thank You for Sponsoring the 2008 Kansas Bar Association Annual Meeting JANET C. WALSH PATRICK G. WALSH
MARIAN M. BURNS CLYDE M. BURNS
BURNS, BURNS, WALSH & WALSH, P.A. ATTORNEYS AT LAW P.O. Box 487, 704 Topeka Lyndon, Kansas 66451
Ph: (785) 828-4418 Fax: (785) 828-3269 bbww@bbwwlaw.com
Osage City Office 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
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JULY/AUGUST 2008 – 23
Thank You for Sponsoring the 2008 Kansas Bar Association Annual Meeting
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Law Practice Management Tips & Tricks
“Win-Win” E-Filing By Larry N. Zimmerman, Valentine & Zimmerman P.A., Topeka
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he Nebraska Supreme Court’s Technology Committee recently released the results of an e-filing pilot test in its trial courts. Several aspects of the pilot should be of interest to Kansas lawyers and judges. A PowerPoint demonstration of the filing system can be viewed at http://www. nebraska.gov/courts/efile/demo/. Attorneys using the U.S. District Court’s CM/ECF system will note a familiar interface. Standard formats and interfaces have lowered the cost of e-filing systems and familiarity eases training and adoption. E-Filing should benefit attorneys The key finding of the Technology Committee analysis was that “... keeping the perceived cost [of e-filing] favorable, in comparison to paper filings, is critical to inducing practitioners to use the system.” William M. Miller and Judge William Cassel, E-Filing in Nebraska – A Progress Report, The Nebraska Lawyer May, 2008: 11-12. What a revolutionary idea – a system that reduces the courts’ costs and increases efficiency should be priced lower than paper filing! That might appear obvious but other states (including Kansas) have toyed with or implemented e-filing systems, which penalize electronic filers. In Colorado, for example, the LexisNexis e-filing system imposes a surcharge on electronically filed pleadings. Instead of that backward approach, Nebraska has created a terrific deal for electronic filers. First, there appears to be no charge to electronically file a pleading. Second, viewing case filings requires a nominal $1 per case charge (to download all pleadings) or a flat rate of $300 per month to download unlimited case files. Compare that rate to the “deal” offered Kansas attorneys in 2006 by the Kansas Supreme Court, $1 to search for a case and $1 per page to view (a proposal defeated by SB 353). The Nebraska model reduces paper-handling costs for both the courts and attorneys, eliminates delivery costs and delays, and provides inexpensive access to the court record from any location at any time. Such a win-win solution bespeaks careful planning. Broad participation required It seems Nebraska arrived at its win-win approach by involving a diverse cross-section of the legal community in the pilot e-filing project. The Nebraska Supreme Court Technology Committee is comprised of justices, district court judges and clerks, practicing attorneys, and law professors. This mirrors attempts by the U.S. Federal Courts in rolling out the PACER CM/ECF project. That system also tapped the concerns and expertise of eventual end-users. Both groups’ membership was public and meeting notes were available to the legal public. The Kansas Supreme Court travelled this very road once before with dramatic success. The Shawnee County District Court e-filing system was kicked off in 1996 with the blessing THE JOURNAL OF THE KANSAS BAR ASSOCIATION
of the Kansas Supreme Court. The initial committee included a judge, the district court clerk and technology staff, and practicing attorneys. The project accepted the first electronically filed pleadings in just six months! That same core system is still functioning a decade later but never would have gotten off the ground had it not followed the same rules Nebraska eventually discovered – planning and development must involve the end-users of the project and e-filing must be cheaper and easier to use than paper filing. More recently, Johnson County has begun working toward an e-filing system. Is it Kansas’ turn to lead again? Kansas ought to be well situated to resume the march toward e-filing and electronic court access. The roll-out of Full Court, a uniform court case management system, has been a terrific success. That success is being followed up with progress toward imaging at the courts and e-mailed service returns and docket notices. The two counties, Johnson and Shawnee, each have battle-hardened information technology staffs who are leaders in developing e-filing expertise. Most importantly, the Kansas judiciary has a keen financial motivation to reduce costs and increase efficiency. The Shawnee County District Court e-filing system may not be the technology we want to use to march into the 21st century. (It is too shockingly cheap to and adaptable to appeal as a glamorous and bold technology initiative.) Nevertheless, we should duplicate its collaborative gathering of judges, clerks, sheriffs, attorneys, and law professors. Such a gathering would know that a great e-filing system needs an e-mail component to supplement Web-based filing (a secret ingredient Nebraska has not cottoned to yet). In the end, what other justification for a Kansas e-filing success is needed than a chance to beat the Huskers! n About the Author Larry N. Zimmerman, Topeka, is a partner at Valentine & Zimmerman P.A. and an adjunct professor teaching law and technology at Washburn University School of Law. He has spoken on legal technology issues at national and state seminars and is a member of the Kansas Collection Attorneys Association and the American, Kansas, and Topeka bar associations. He is one of the founding members of the KBA Law Practice Management Section, where he serves as editor. To join the LPM Section or any other KBA section, you may register online at www.ksbar.org or call (785) 234-5696. 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
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ffective July 1, 2007, the Kansas Supreme Court adopted Kansas Rule of Professional Conduct 1.17, concerning conflicts of interests created by attorney interviews with prospective clients who do not become clients, regardless of whether the prospective client decides not to hire the attorney or whether the attorney decides not to accept representation. Basically, if the attorney does not learn any information that could be “significantly harmful” if used against the prospective client, the attorney is not precluded from later assuming representation of a client with interests adverse to the prospective client in the same or a substantially related matter. Even if the attorney has learned significantly harmful information, members of the attorney’s law firm may represent conflicting interests in the matter under two conditions. First, the interviewing attorney must have been careful not to obtain more disqualifying information than was necessary to determine whether to represent the prospective client. Second, the interviewing attorney must be timely screened from any participation in the matter, including receiving no part of the fee and giving prompt notice to the prospective client about the screening procedures adopted.1 Screening is allowed in this situation because an attorney-client relationship was never formed and the relationship between the attorney and the prospective client is so limited in time and depth that the full duty of loyalty warranted for actual clients does not apply. The Kansas Rules of Professional Conduct do not attempt to define what information would be “significantly harmful,” because the determination of level of harm will vary depending upon the facts of each case. The Restatement of Law Governing Lawyers, § 15, comment c, provides that when a prospective client seeks to disqualify a lawyer based on the receipt of significantly harmful information, the movant bears the burden of persuasion that the lawyer received such information.2 When lawyers engage in wide-ranging, in-depth discussions with prospective clients, they are more likely to obtain significantly harmful information that will create conflicts of interests with adverse parties, should the attorney-client relationship never develop. The Comments to Rule 1.17 advise that to avoid disqualification of representation of adverse interests, the lawyer should limit the initial interview to only obtain information to determine whether the lawyer has a conflict of interest in representing the prospective client and whether the matter is one the lawyer would be willing to undertake. Thus lawyers should consider whether their procedures and styles of discussions in initial interviews are causing them to obtain more information than is necessary to decide whether to form an attorney-client relationship. Another permissible practice authorized by the Comments is for a lawyer to obtain informed consent from prospective FOOTNOTES 1. KRPC 1.0 Terminology, Comments 8-10 outline effective screening measures.
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clients that no information disclosed during the interview will prohibit the lawyer from representing a different client in the matter. American Bar Association Ethics Opinion 90-358 suggests that lawyers explain that the necessary, preliminary steps in considering representing a client in a new matter are first to determine if the lawyer has a conflict of interest with a current or former client and then whether the matter is within the lawyer’s areas of practice and one in which the lawyer is willing to represent the would-be client. Lawyers should caution prospective clients not to divulge confidential information until a decision on representation has been made and may request clients to agree that the information given for this purpose will not be confidential and will not bar the lawyer or the law firm from representing adverse interests should no representation occur. If informed client consent is obtained, the lawyer should have the client execute a written agreement. Lawyers should note that new Rule 1.17 continues their longstanding obligation to give prospective clients the same duty of confidentiality provided to clients. Absent informed consent otherwise, lawyers shall not use or reveal information learned in the initial consultation except as permitted by Rule 1.9. Rule 1.9, which concerns duties to former clients, authorizes lawyers to use information learned in the course of representation of a former client if the information has become generally known. As a practical matter, if the information provided by the prospective client is known by the adversary or otherwise generally known, it not only may be used by the lawyer to the disadvantage of the would-be client, but it is also highly unlikely to be considered “significantly harmful” information that would create a conflict of interest with potential adverse party clients. n About the Author Professor Sheila Reynolds is a law professor at Washburn University School of Law, where she teaches professional responsibility and an advanced ethics seminar. In 2008-2009 she will serve as associate dean for Academic Affairs for Washburn Law School. She previously has taught a Legal Malpractice Seminar and Law Clinic. She has served on the KBA Legal Ethics Advisory Committee, the KBA’s Ethics 2000 Commission, and the Judicial Council’s Forms Committee. She co-authored two chapters of the KBA’s Ethics Handbook (1996 and Supp. 2001) and the chapter on “Ethical Considerations in Representing an Impaired Client” for the KBA Long-Term Care Handbook (1999 and Supp. 2001). 2. For a summary of appellate decisions regarding motions to disqualify for this type of conflict, see William Freivogel’s Web site on attorney conflicts of interest, http://www.freivogelonconflicts.com. In the Table of Contents, click on Initial Interview.
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KANSAS BAR ASSOCIATION
Special Thanks to the 2008 A nnual Meeting Task Force (From Topeka unless noted)
Mary D. Feighny, Office of the Kansas Attorney General, 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 Chtd. Chelsey G. Langland, Kansas Court of Appeals Mary Napier, Topeka Bar Association Linda S. Parks, Hite, Fanning & Honeyman LLP, Wichita Patrice Petersen-Klein, Kansas Corporation Commission E. Lou Bjorgaard Probasco, Lou Probasco Law Office Douglas T. Shima, Kansas Court of Appeals Teresa L. Watson, Fisher, Patterson, Sayler & Smith LLP James C. Wright, Wright Law Office Thomas E. Wright, Kansas Corporation Commission
Special Thanks to the 2008 A nnual Meeting Sponsors Achterberg & Angell Alderson, Alderson, Weiler, Conklin, Burghart & Crow LLC ALPS AT&T Baldock & Turner, LLP Beezley, Sara S. Bradshaw, Arden and Karen Burns, Burns, Walsh & Walsh P.A. Core First Bank & Trust Cox Communications Davis, Unrein, Biggs & Head LLP Duncan II, Robert E. “Tuck” Feighny, Mary Fisher, Patterson, Sayler & Smith LLP Goodell, Stratton, Edmonds & Palmer LLP Hamilton, Laughlin, Barker, Johnson & Watson Henson, Clark, Hutton, Mudrick & Gragson LLP Hite, Fanning & Honeyman LLP Kansas Court Reporters Assn. Kansas Gas Service Leatherman, L.J.
Legal Directories Publishing Co. Martin, Pringle, Oliver, Wallace & Bauer LLP McKinney & McKinney Metropolitan Court Reporters Inc. Morris Laing Evans Brock & Kennedy Chtd. Nora Lyon & Associates LLC Parker & Hay LLP Parrish Hotel Corp. Polsinelli Shalton Flanigan Suelthaus P.C. Probasco, E. Lou Bjorgaard Ralston, Pope & Diehl LLC Rebein Bangerter P.A. Shook, Hardy & Bacon LLP The Bar Plan Tilton & Tilton Chtd. Valentine & Zimmerman P.A. Visit Topeka Inc. Whitney B. Damron P.A. Women Attorneys Association of Topeka Woner Glenn Reeder Girard & Riordan Wright, James “Jim” Wright, Thomas “Tom”
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Celebrating Our Past, Present, and Future
Closest to the Pin Contest Hole #5 Bruce Brumley Hole #7 Glenn Braun Hole #13 John Hampton Hole #17 Dick Honeyman
Golf Tournament Winners Steve Tilton Scott Johnson Glenn Braun Bruce Brumley
Flag Prizes Hole #4 Straightest Drive: Paul Davis Hole #9 Longest Putt: Scott Hill Hole #14 Longest Drive: Toby Crouse Hole #18 Longest Putt: Jim Oliver
2nd Place Matt Gough Mark Andersen Evan Ice Steve Gough
Doug Witteman Timothy Girard John Wine Edward Brown Judge Linda Trigg Whitney Damron Thomas Burgardt
John “Jack” Black Steve Doering Douglas Fincher Michael Munson Aaron Kite Judge Allen Slater
Grand Prize Winner: Steve Doering (85) Top Male Score: Hon. Allen Slater (82) Top Female Score: Hon. Linda Trigg (36)
1st 2nd 3rd 4th 5th
Scott Hill Michael Munson Tucker Poling Alissa Bauer Charles Peckham
6th 7th 8th 9th 10th
Gerald Green Traci DoeringFerrell Justin Ferrell Jennifer Hill Patrick Riordan
JULY/AUGUST 2008 – 27
A Few Memories from... KANSAS BAR ASSOCIATION
Celebrating Our Past, Present, and Future
I. Introduction State court practitioners who thought that they had no need to immerse themselves in electronic discovery rules no longer have that luxury. As of July 1, a client’s electronically stored information is discoverable in Kansas state civil cases, as it has been since 2006 in federal court cases. Specific rules applicable to the discovery of electronic information in civil cases have now been enacted in Kansas. Continuing in its effort to keep the Kansas Code of Civil Procedure abreast of the Federal Rules, and in recognition of technological changes in the 21st century, the Kansas Legislature adopted amendments to the Kansas Code,1 effective July 1,2 governing the discovery of electronically stored information (ESI). This article will provide some background and summarize the key changes brought about by the adoption of the bill.3
II. Kansas Typically Follows the Federal Rules of Civil Procedure Since the adoption of the 1963 overhaul of the rules of civil procedure in Kansas, those rules have been cousins, if not identical twins, to the Federal Rules of Civil Procedure.4 In the absence of binding Kansas appellate authority on a particular point, having the Kansas Code follow the Federal Rules so closely has been helpful to Kansas practitioners and judges in interpreting federal cases and applying the comparable Federal Rule.5 As the Court of Appeals stated in Baumann v. Excel Industries Inc.: Federal court decisions interpreting the federal code of civil procedure are highly persuasive in applying the Kansas Code of Civil Procedure, which is based on the federal code. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975).[6] Endnotes begin on Page 34. 30 – JULY/AUGUST 2008
Thus, as the Federal Rules have developed and evolved over the years, the Kansas Judicial Council has striven to keep up, and to recommend changes to the Legislature, which would maintain the similarity between the state and federal codes of civil procedure.7 This is not to say that Kansas slavishly follows every change brought about in the Federal Rules, or that the independence by which Kansas is known somehow exists everywhere but in the Code of Civil Procedure. Indeed, there are notable departures from the Federal Rules in the Kansas Code, and several distinct Kansas procedural rules, which were not derived from the Federal Rules.8 However, to a large extent, the Kansas civil procedure rules very closely follow the Federal Rules, and maintaining that consistency — when suitable for the citizens, litigants and courts of this state — is beneficial. As the Kansas Supreme Court has stated: Kansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive.)[9]
III. Electronically Stored Information is Real, Substantial, and Now Discoverable It is no secret that “The Electronic Age” has brought about very significant changes in the manner and method by which information is created, communicated, and stored. The ease with which information can be created has caused an explosion in the amount of information being created. THE JOURNAL OF THE KANSAS BAR ASSOCIATION
LEGAL ARTICLE: ESI COMES TO THE K.S.A. ...
Almost 800 megabytes of recorded information is produced per person each year, 92 percent of which is in magnetically stored form, on computers or computer storage media. To visualize this amount of information, it would take about 30 feet of books to store the equivalent of 800 MB of information on paper.[10] Thus, if 92 percent of the information produced by each person is electronic, and one seeks only paper documents in discovery, only 8 percent of the existing information may be obtained. Not only is the electronic information easy to create, it is also very easy to store — in very great volumes. Electronically stored information (ESI) is remarkable due primarily to its volume; a standard desktop computer can store the equivalent of 40,000,000 typewritten pages of information. New desktop hard drives have been developed that hold a terabyte of data. As printed text, a terabyte would occupy 100 million reams of paper (made from 50,000 trees).[11] A diligent lawyer must seek discovery of information maintained in an electronic format, in order to obtain what is out there. Once ESI is produced, there are significant benefits to having the information in electronic form. First, the “soft” or electronic version of the “document” may well reveal information not reflected in a “hard” or paper copy of the document. That information can include contextual information,12 as well as underlying electronic footprints or “metadata,”13 which would not be revealed by a printout of the same document.14
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Second, having discovery documents in electronic format helps lawyer and client to review, search, organize, categorize, and store the information produced. ESI can be stored in a very small, portable form, and thus easily transported. It can be sent to others very easily and quickly. It can be reviewed on screen and organized in useful ways. And, searching for specific authors or subjects is markedly easier when the information is electronically stored.15 What is ESI? Essentially, the term covers any type of information which has been created, or is stored, in magnetic, electronic, or digital form. The Committee Note to the amended Federal Rule 34(a) notes that the discovery of “electronically stored information” is intended to “stand on equal footing with the discovery of paper documents,” and is a term expansive enough to cover “all current types of computer based information, and flexible enough to encompass future changes and developments.”16 Despite the prevalence of ESI, one might ask why the Kansas Code of Civil Procedure must be amended in order to address it. Could not the issue of ESI be addressed on a caseby-case basis? Could not each of the 31 districts in Kansas adopt rules of their own on the subject? Of course, the answer is that uniform rules of practice and procedure help all parties and counsel (as well as the courts) to practice in a uniform manner. Further, having a single set of rules applicable to all civil cases helps in the development of a body of law, which will guide and help courts, counsel, and litigants as that body of law develops. Finally — as noted above — having a (Continued on next page)
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uniform code based on the federal rules will provide a body of federal case law, which will assist in the interpretation of the Kansas Code. As noted by the Administrative Office of the U.S. Courts, in justifying the ESI changes adopted by those courts: One study found that the cost of discovery represents approximately 50 percent of the litigation costs in all cases, and as much as 90 percent of the litigation costs in the cases where discovery is actively employed. A “cottage industry” of forensic specialists has emerged with the sole purpose of assisting law firms comply with their electronic discovery obligations. Developing case law on discovery of electronically stored information has helped provide guidance, but it is inconsistent and incomplete. Disparate local rules have filled the gap between the existing discovery rules and practice, treat-
ing litigants differently depending on the jurisdiction. National rules are necessary to provide uniformity and prevent a patchwork of local rules and requirements that would otherwise grow.[17]
The same principles apply with equal force to the civil cases in the courts of this state. In 2007, the Civil Code Advisory Committee of the Kansas Judicial Council took up the 2006 ESI amendments to the Federal Rules of Civil Procedure. That study led to proposed bill, which was then submitted to the Kansas Judicial Council, approved by the Council in December 2007, and submitted to the Kansas Legislature in January 2008. As noted above, the Legislature then adopted the Judicial Council’s bill without amendment.
IV. Summary of Changes First, while ESI is not specifically defined in the new rules, the term is used numerous times in Senate Bill 434. The breadth of the term is emphasized in Federal Rule 34/K.S.A. 60-234, where the added words (in italics) help to show the Legislature’s intent: “electronically stored information (including ... sound recordings, images and other data or data compilations stored in any medium from which information can be obtained ...” Thus, electronic information stored in any medium from which information can be obtained is subject to discovery. A. K.S.A. 60-21618 1. Case management conference The court now is required to take appropriate action at a case management conference, with respect to: (5) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (6) any issues relating to claims of privilege or of protection as trial preparation material, including, if the parties agree on a procedure to assert such claims after production, whether to ask the court to include their agreement in an order.[19]
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Thus, at a case management conference, the parties and the court should be prepared to discuss any issues relating to the discovery of ESI. Counsel should become familiar with his client’s electronic systems, in order to discuss such issues in a meaningful manner. The Kansas federal court has adopted guidelines for addressing ESI issues in case management conferences.20 These guidelines require counsel to become familiar with their clients’ electronic information systems, and to meet and confer about electronic discovery issues, including format and metadata (see below). Judges and counsel in state court actions may wish to review and become familiar with these guidelines as the ESI rules are implemented in practice. Another valuable resource on the application of discovery rules to ESI can be found in Magistrate Judge David Waxse’s oft-cited decision in Williams v. Sprint/United Management Co.21 2. Privilege and work product Additionally, claims of privilege should be anticipated. With the high volume of documents being produced in electronic form, the chance increases that a privileged or work product document will slip through to production. Parties and counsel should consider an agreement in advance (claw-back) that any such documents inadvertently produced will be returned to the producing party. The equal chance that it could happen to either side, and the reciprocal nature of the agreement, help to justify and support such a claw-back agreement.22 Another approach is the “quick peek” agreement. Under a “quick peek” agreement the requesting party reviews potentially responsive materials and identifies what it wants produced, and the producing party then reviews that presumably smaller subset and produces only materials that are not privileged.[23] B. K.S.A. 60-22624 1. Not reasonably accessible Discovery of ESI may be avoided in the limited circumstance that the sources of such information are “not reasonably accessible because of undue burden or cost.” The burden is on the party seeking to avoid discovery to make this showing,
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in which case the requesting party may still obtain the information on a showing of “good cause,” under such conditions as the court may order. 2. Privilege log The statute is now formalized to require that, when information (electronic or otherwise) is withheld from production on the basis of a claim of privilege or work product, the withholding party must describe the nature of the withheld documents without revealing the privileged or work product information contained therein (although the rule does not specifically require a “privilege log,”25) with sufficient detail to “enable other parties to assess the applicability of the protection.”26 3. Inadvertent production of privileged documents The statute also provides for the circumstance where a privileged document is inadvertently produced, by requiring the receiving party — upon being notified of his receipt of privileged documents — to “return, sequester, or destroy the specified information and any copies,” and not to “use or disclose the information until the claim [or privilege] is resolved.” The producing party does have the obligation to “take reasonable steps to retrieve” the privileged information, if the receiving party notifies him that it has been produced. The duty not to use privileged documents, which have been inadvertently produced, is the subject of a great deal of litigation, and goes beyond what is required by the (newly amended) Model Rules of Professional Conduct,27 which only requires the receiving party to “notify the sender” promptly.28 Notably, the producing party must preserve the subject information until any claim regarding the document has been resolved. C. K.S.A. 60-23329 Business records This section now clearly includes ESI among the “business records,” which a party has the option to produce in lieu of written answers to interrogatories. D. K.S.A. 60-23430 1. Produce ESI “Documents” requested under this rule now expressly include ESI. In that connection, the parties should address the form in which ESI will be produced (e.g., PDF, TIFF, native format, etc.).
2. Test or sample The rule is also amended to allow a requesting party to “test or sample any designated documents or electronically stored information.” This may include a request to inspect the producing party’s computer system itself, to test the completeness and accuracy of the production. In addition to inspecting and copying, a demanding party may request an opportunity to test or sample materials. This request may be curtailed by the Rule 26(b)(2) and 26(c) limitations against burdensome and intrusive discovery requests. The comments point out that permitting a requesting party to test or sample materials “is not meant to create a routine right of direct access to a party’s electronic information system” and “courts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Fed. R. Civ. P. 34 (Advisory Comm. Note, 2006).[31] 3. Native format Unless otherwise specified in the request, or agreed by the parties, “the responding party must produce the [requested] information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” The form in which ESI is ordinarily maintained is typically called its “native format.” Producing documents in native format can pose problems for the producing party, because “it creates difficulties in redacting documents, is technically challenging, and enables an opponent to alter the data after production. It also impacts the type of “metadata” that will be available to the opposing side.”32 On the other hand, there are compelling arguments in favor of producing ESI in native format. These include: saving the time and cost of converting the information from native to PDF, TIFF, or other format; and reducing volume by eliminating duplication (which is relatively simple in native format, but cumbersome and expensive in other formats).33 In addition, methods of marking and identifying documents in native form, such as “hashing,” are easier and more effective than “Bates” labeling.34 When the parties are unable to agree, the “current judicial trend continues to be toward native production and away from TIFF.”35
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4. Single form The rules make it clear that ESI need not be produced in more than one form. E. K.S.A. 60-23736 Document destruction While sanctions are to be imposed for the failure to make production of documents, a court may not impose sanctions where the failure to provide ESI, which (Continued on next page)
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fitting and lasting tribute to a deceased lawyer can be made through a memorial contribution to The Kansas Bar Foundation. This highly appropriate and meaningful gesture on the part of friends and associates will be felt and appreciated by the family of the deceased. Contributions may be made to the Kansas Bar Foundation, 1200 S.W. Harrison, Topeka, KS 66612, stating in whose memory it is made. An officer of the Foundation will notify the family that a contribution has been made and by whom, although the amount of the contribution will not be specified. For bequests or contributions in the sum of $1,000 or more, you can have a name, law firm, or message engraved on a paving brick that will be permanently displayed at the entrance and garden of the Kansas Law Center.
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has been “lost as a result of the routine, good faith operation of an electronic information system.” While this may sound simple on its face, the requirement that the document destruction system was “routine,” as well as operated in “good faith” has generated a fair amount of comment and litigation.37 This will require close scrutiny and involvement by the court, and may lead to satellite litigation on the subject. F. K.S.A. 60-24538 1. Form for production As with Requests for Production under the amended K.S.A. 60-234, a subpoena for documents may “specify the form in which electronically stored information is to be produced.” 2. Testing or sampling Again, subpoenas — like Requests for Production — may command “testing or sampling of designated electronically stored information.” 3. Objection A person commanded by a subpoena to produce documents may object to producing ESI in the form or forms requested. 4. Native format Again, there is a default to production of ESI in native format “or in a form or forms that are reasonably useable.” And production of ESI in multiple forms is not required. 5. Not reasonably accessible The subpoena statute parrots the request for production statute by allowing the party served with a subpoena to avoid production by establishing that the information “is not reasonably accessible because of undue burden or cost.” Again, similarly to K.S.A. 60-234, the court may order production on a showing of good cause, and may specify conditions for the discovery. 6. Inadvertent production Finally, again following the comparable provision in K.S.A. 60-234, privileged documents that have been inadvertently produced must be returned, destroyed, or sequestered by the requesting party, upon being notified of the inadvertent production.
V. Conclusion Negative publicity has surrounded electronic discovery, particularly in view of the four decisions on this subject in the much-publicized case of Zubulake v. UBS Warburg.39 However, those decisions predated these new rules by more than two years, and the most memorable sanctions and holdings of that case — spoliation penalties, the litigation “hold,” preservation duties, and the severe sanctions which eventually resulted in a gigantic verdict for the plaintiff — are not a part of the Federal Rules, nor of Kansas Senate Bill 434. While the 2008 changes to the Kansas Code of Civil Procedure will bring about some changes in discovery, bringing the Code into closer conformity to the Federal Rules40 and providing uniformity will facilitate electronic discovery in civil cases in the courts of this state. n
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About the Author J. Nick Badgerow is a partner with Spencer Fane Britt & Browne LLP in Overland Park. He is a member of the Kansas Judicial Council and chairman of the Judicial Council’s Civil Code Advisory Committee. He is also a member of the Kansas Board of Discipline for Attorneys, chairman of both the Kansas Bar Association Ethics Advisory Committee the Johnson County Bar Association Ethics & Grievance Committee. ENDNOTES 1. Senate Bill 434, passed the Kansas Senate (unanimously) on Feb.13, 2008, and passed the Kansas House (unanimously) on March 14, 2008. http://www.kslegislature.org/legsrv-billtrack/searchBills.dojessionid=60 4532A6704E68998D89390A2AE46117. It was signed by the Governor on March 27, 2008. http://www.governor.ks.gov/news/NewsRelease/2008/ nr-08-0327a.htm. 2. http://www.kslegislature.org/legsrv-billtrack/searchBills.dojessionid=6 04532A6704E68998D89390A2AE46117. 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, practitioners before the courts of this state will want to review and become familiar with each specific rule. 4. See Spencer A. Gard, “Author’s Introduction to The First Edition,” set forth in 4 Kansas Law and Practice: Kansas Code of Civil Procedure Annotated, Fourth Edition, p. xi (2003). 5. See Back-Wenzel v. Williams, 279 Kan. 346, 109 P.3d 1194 (2005); Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975); Marr v. Geiger Ready-Mix Co., 209 Kan. 40, Syl. ¶ 2, 495 P.2d 1399 (1972) (Rule 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); Fredericks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976); Williams v. Consoli. Investors Inc., 205 Kan. 728, 732, 472 P2d 248 (1970)(Rules 34 and 37); Gideon v. Bo-Mar Homes Inc., 205 Kan. 321, 325, 469 P.2d 272 (1970)(Rule 41); Bott v. Wendler, 203 Kan. 212, 219, 453 P.2d 100 (1969)(Rule 49); Baumann v. Excel Indus. Inc., 17 Kan. App. 2d 807, 815, 845 P.2d 65 (1993). 6. Baumann v. Excel Indus. Inc., 17 Kan. App. 2d 807, 815, 845 P.2d 65 (1993). 7. J. Nick Badgerow, The Fork in the Road: A Practitioner’s Guide to the 1997 Changes in the Code of Civil Procedure, 66 J. Kan. Bar Ass’n 32 (JuneJuly, 1997). 8. See for example, K.S.A. 60-204, 60-205, 60-211, 60-217, 60-225. 9. Wood v. Groh, 269 Kan. 420, 430, 7 P.3d 1163 (2000). 10. Keith Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 N.W. J. of Tech. & Intell. Prop. 171 (Spring 2006), available on-line at http://www.law. northwestern.ed/journals/njtip/v4/n2/3, quoting Peter Lyman and Hal R. Varian, How Much Information? (2003), http://www.sims.berkeley.edu/ how-much-info-2003. 11. Robert L. Kelly, The Tech Side of E-Discovery, 17 Business Law Today No. 1 (Sept. – Oct. 2007), available online at http://www.abanet.org/buslaw/blt/2007-09/kelly.shtml. 12. See, e.g., Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993). 13. “Metadata. Data about data. Index-type information pertaining to the entire data set rather than the objects within the data set. Metadata usually includes the date, source, map projection, scale, resolution, accuracy, and reliability of the information, as well as data about the format and structure of the data set.” Arizona Electronic Glossary, http://atlas.librar. arizona.edu/glossaryk_p.htm. 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 Ethics Op. 738 (2008); Professional Ethics Op. of the Florida Bar Op. 06-2
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(2006); State Bar of Arizona Ethics Op. 07-03 (2007); D.C. Ethics Op. 341 (2007). Suffice it to say that the subject exceeds the scope or the specific purpose of this article. 15. Lawrence Youst and Haejung Koh, Management and Discovery of Electronically Stored Information, Comp. L Rev. and Tech. Jrnl. (Summer 1997), available online at http://www.smu.edu/stlr/Youst.pdf. 16. Rule 34, Federal Rules of Civil Procedure, Advisory Committee Notes, Comment to 2006 Amendment, Subsection (a). 17. “Electronically Stored Information Target of New Rules,” 38 The Third Branch, No. 11 (Nov. 2006), available online at http://www. uscourts.gov/ttb/11-06/electronically/index.html. 18. Senate Bill 434, Sec. 1. 19. Id. 20. The U.S. District Court for the District of Kansas, “Guidelines for Discovery of Electronically Stored Information,” available online at http:// www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf. 21. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005) 22. See Whitney Adams and Mark Tuohey, Claw-Back Agreements Help Protect Privileged Documents, 7 N. Y. Law Jrnl., No. 5 (Feb. 2, 2004), available online at http://www.crickettechnologies.com/ resources/nationallawjournalCricket.pdf. 23. Wayne Moskowitz, Electronic Discovery Under the New Federal Rules, 63 Bench & Bar of Minnesota, No. 11 (Dec. 2006), available on-line at http://www2.mnbar.org/benchandbar/2006/dec06/electronic.htm. 24. Senate Bill 434, Sec. 2. 25. See Cypress Media Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). 26. Senate Bill 434, Sec. 2. 27. Compare Senate Bill 434, Sec. 2 (and Rule 26(b)(5)(B), F.R.C.P.) with Rule 4.4, Kansas Rules of Professional Conduct. J. Nick Badgerow, “Rules vs. Rules: A Conflict on Inadvertent Production,” 77 J. Kan. Bar Ass’n 19 (January, 2008). 28. Rule 4.4(b), Kansas Rules of Professional Conduct. 29. Senate Bill 434, Sec. 3.
LEGAL ARTICLE: ESI COMES TO THE K.S.A. ... 30. Senate Bill 434, Sec. 4. 31. Katherine Wittenberg, Litigation Gives Federal Rules a Big Shove, ABA Litigation Section Hot Topics, available online at http://www.abanet.org/ litigation/litigationupdate/2006/december_hottopics.html. 32. Richard Schneider, Matthew S. Harman and Robert B. Friedman, The New Federal E-Discovery Rules: An Expository Narrative, Metro. Corp. Coun. (March 2007), available online at http://www.metrocorpcounsel. com/current.php?artType=view&artMonth=March&artYear=2007&EntryNo=6329. 33. James D. Sherman and Lori E. Steidl, Discovery Savings: Going Native, (2007), available online at http://www.law.com/jsp/ihc/ PubArticleIHC.jsp?id=1178183085190. 34 See, Craig Ball, Gazing Into the Crystal EDD Ball, (2008), available online at http://www.law.com/jsp/legaltechnology/pubArticleLT. jsp?id=1201864414445 35. Robert Douglas Brownstone, Preserve or Perish; Destroy or Drown – eDiscovery Morphs into Electronic Information Management, 8 N.C. J.L. & Tech. 1, 46 (Fall, 2006). 36. Senate Bill 434, Sec. 5. 37. See, e.g., APC Filtration Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007)(driving 20 miles to dispose of computer in a construction dumpster after receiving notice of a lawsuit is not a “good faith” operation of a routine destruction policy). 38. Senate Bill 434, Sec. 6. 39. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D. N.Y. 2003); Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D. N.Y. 2003); Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D. N.Y. 2003); Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D. N.Y. July 20, 2004). 40. Major changes to all of the Federal Rules of Civil Procedure were adopted effective Dec. 1, 2007. http://www.uscourts.gov/rules. Those changes are presently under review by the Kansas Judicial Council’s Civil Code Advisory Committee, and – if approved by the Council – may be submitted to the Legislature at the 2009 Legislative Session.
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Appellate Decisions All opinion digests are available on the KBA members-only Web site at www.ksbar.org. We also send out a weekly eJournal informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your e-mail address or other contact information has changed, please contact bar services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ Web site at www. kscourts.org for the full opinions.
Supreme Court Attorney Discipline IN RE DWIGHT A. CORRIN ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NOS. 96,885 AND 99,494 – JUNE 6, 2008 FACTS: Respondent, a private practitioner in Wichita, was the subject of two disciplinary hearings. The first hearing arose from two separate client complaints and was uncontested. The panel found violations of KRPCs 1.3 (diligence) and 1.4 (communication) and SCR 207 (cooperation with the disciplinary administrator). The panel recommended that a two-year suspension be stayed while respondent was placed on supervised probation subject to several terms and conditions. While that case was pending before the Court, a hearing before the same panel members on a third complaint resulted in a rare interim order issued by the panel giving respondent the opportunity to disburse funds held in his trust account for more than a year. When the panel reconvened nearly five months later, respondent had not followed the directives of the order, and his trust account still held funds belonging to himself and 19 clients. The hearing panel found violations of KRPCs 1.4, 1.15(a) and (b) (safekeeping property), and 8.4(g) (misconduct adversely reflecting on fitness to practice law) and SCR 207. Finding six aggravating and two mitigating factors, the panel recommended indefinite suspension, concluding that probation was no longer a viable option. HELD: Respondent filed exceptions to some of the panel’s findings. However, the Court found substantial, clear, convincing, and satisfactory evidence for the panel’s findings of fact and conclusions of rules violations and all the mitigating and aggravating factors. The Court adopted the panel’s recommended sanction of indefinite suspension for both matters and further ordered respondent to pay out all client funds held in his trust account under the supervision of the disciplinary administrator’s office. IN RE CHRISTOPHER N. COWGER ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 99,955 – MAY 9, 2008 FACTS: Respondent was a private practitioner from Topeka. Three complaints resulted in a disciplinary hearing on allegations of multiple violations of the Kansas Rules of Professional Conduct (KRPC). While the hearing panel’s report was pending before the Kansas Supreme Court, respondent wrote to the clerk of the appellate courts voluntarily surrendering his license to practice law in Kansas pursuant to SCR 217. 36 – JULY/AUGUST 2008
The hearing panel found clear and convincing evidence of violations of KRPCs 1.2(d) (scope of representation) when respondent assisted a client in engaging in criminal conduct by purchasing marijuana from his client; 1.4(a) (communication) when he failed to keep a client informed about the status of an expungement case, 1.7 (conflict of interest) when he used the attorney-client relationship to obtain illegal drugs, 1.8(b) (conflict of interest – prohibited transactions [prior to July 1, 2007]) when he abused information regarding his client, 1.15(a) (safekeeping property) when he placed unearned fees in his operating account rather than the trust account, 8.4(b) (criminal misconduct) when he purchased marijuana on 10 to 15 occasions from a client, and 8.4(g) (conduct adversely affecting fitness to practice) and SCR 207 for failing to cooperate in the disciplinary process. HELD: The Court examined the disciplinary administrator’s files and found that the surrender should be accepted and respondent disbarred. IN RE SUSAN L. HARRIS ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 99,500 – MAY 16, 2008 FACTS: Respondent was a private practitioner in Kansas City, Mo. She was admitted in Missouri in 1995 and Kansas in 1996. However, her Kansas license was administratively suspended in 2003 for failure to complete annual registration requirements and has remained suspended. Respondent was disbarred in Missouri in 2005 based on that jurisdiction’s default rule. Although respondent wrote to the Kansas disciplinary administrator that she was filing a petition to set aside the Missouri order, she failed to do so. Eighteen months later, a formal complaint based on the Missouri disbarment was filed in Kansas, but respondent failed to appear at the Kansas hearing. Applying SCR 202 on reciprocal discipline, the hearing panel concluded she violated KRPCs 1.3 (diligence), 1.4 (communication), 1.16(d) (declining or terminating representation), 5.5 (unauthorized practice), all of which had been alleged in the underlying Missouri complaint, and 8.1 (disciplinary matters) and SCR 207 (cooperation with disciplinary administrator). The panel unanimously recommended disbarment. HELD: Respondent did not file exceptions to the final hearing report and failed to appear before Kansas Supreme Court for oral argument. Despite the uncontested nature of the proceedings, the Court set aside the panel’s findings of fact and conclusions of law because they were based on substantive allegations of misconduct that were never considered, due to Missouri’s default rule. Instead, the Court found respondent’s statement that she intended to initiate THE JOURNAL OF THE KANSAS BAR ASSOCIATION
a petition to set aside the default disbarment was false and violated KRPC 8.4(d) (misconduct prejudicial to the administration of justice). The Court ordered indefinite suspension with a special condition that no petition for reinstatement be filed unless accompanied by proof of reinstatement in Missouri. IN RE DIANE L. HILLBRANT ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 99,691 – MAY 16, 2008 FACTS: Respondent was admitted in Kansas in 1984 and is also admitted in Illinois with a registration address in Minnesota but is not admitted there. She also holds licenses to practice pharmacy in Kansas and Minnesota. Following a series of bizarre legal claims and correspondence with Minnesota businesses, she was charged with six counts of unauthorized practice of law in Minnesota in 2004, was convicted of five counts and was sentenced to 450 days in jail, a $5,000 fine and restitution exceeding $19,000. The convictions were upheld on appeal. The state of Illinois suspended her license for a total of one month. The Kansas formal complaint was based on reciprocal discipline arising out of the Minnesota and Illinois proceedings and alleged violations of KRPCs 1.1 (competence), 4.1 (truthfulness), 4.2 (contact with represented persons), 5.5 (unauthorized practice), and 8.4(c) (deceit, fraud). Respondent filed an answer and appeared at the formal hearing, where she stipulated to the facts and rules alleged in the formal complaint. The panel’s final hearing report quotes extensively from the bogus legal demands respondent served in Minnesota. The panel found clear and convincing evidence of the rules alleged in the formal complaint, concluded that five mitigating and five aggravating factors were present and recommended indefinite suspension based on respondent’s dishonest conduct.
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HELD: No exceptions were filed. The Court accepted the uncontested findings of fact and conclusions of rules violations and adopted the recommended sanction. IN RE DALE E. LOVELACE ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 99,501 – MAY 16, 2008 FACTS: Respondent was admitted in Kansas in 1992, is also admitted in Missouri and practiced primarily in Kansas City, Mo. In 2005, the United States charged him with failure to pay income taxes. He pled guilty and served 12 months in prison. In 2006, the Missouri Supreme Court suspended respondent from the practice of law, and he is now eligible to apply for reinstatement. At the Kansas hearing based on the federal and Missouri proceedings, the panel found respondent failed to pay income taxes for seven years and owes approximately $250,000 in taxes, interest, and penalties. The panel found clear and convincing evidence of a KRPC 8.4(b) (criminal misconduct) violation and considered four aggravating factors and five mitigating factors. A majority rejected respondent’s proposed probation plan and recommended definite suspension of six months. One member opined that the probation plan was the appropriate sanction. HELD: Respondent filed exceptions to many of the panel’s conclusions and recommendations. The Court found clear and convincing evidence to support the factual findings, the legal conclusion of a Rule 8.4(b) violation and the aggravating and mitigating factors as stated by the panel. However, in the interim, respondent was diagnosed with occupational and single episode depression for which he is on three daily medications. He has requested disability inactive status. The Court concluded indefinite suspension is the appropriate level of discipline, given the nature of the misconduct and the (Continued on next page)
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admitted present inability to practice. Ordinarily, a respondent must wait three years to apply for reinstatement from indefinite suspension, however, the Court expressly stated that respondent may apply for reinstatement in six months with specific conditions. IN RE ROSIE M. QUINN ORIGINAL PROCEEDING IN DISCIPLINE ONE-YEAR SUSPENSION STAYED NO. 99,295 – MAY 23, 2008 FACTS: Respondent, a private practitioner in Kansas City, Kan., faced a hearing on several allegations relating to mismanagement of her client trust account. An audit of the account revealed that she caused the deposit of a personal injury protection check to her trust account that should have been returned to the client’s insurance carrier. The balance of the account dropped below the amount owed to clients or third parties on several occasions. Respondent also deposited funds belonging to her sister, a nonclient, into her client trust account. The hearing panel found violations of KRPCs 1.15 (safekeeping property), 5.3(b) (failure to supervise staff), and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). The panel identified five aggravating factors, including prior discipline on two occasions for trust account violations, and two mitigating factors. A majority of the panel recommended published censure while the third member recommended six-month definite suspension. Respondent filed exceptions to the final hearing report and to the recommendation of suspension. HELD: The Court adopted the panel’s findings of fact and conclusions of rules violations, all the mitigating factors and all but one of the aggravating factors. The Court regarded a one-year suspension as necessary to impress respondent with the seriousness of her misconduct. However, noting her service to the local legal community, a majority of the Court suspended imposition of the suspension for three years provided respondent complies with strict supervision and monitoring conditions. A minority of the Court would impose a more severe sanction. IN RE MICHAEL K. SHEAHON ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 99,502 – MAY 16, 2008 FACTS: Respondent, a private practitioner from Salina, was admitted in 1982. He was charged by the federal government for failure to file income tax returns for 1995 through 2001. Since 2002 he has filed returns but has outstanding tax liability for all 11 years. He pled guilty to the misdemeanor crime of failing to file a return for 1998 and was sentenced to three years of probation with conditions. He self-reported the conviction to the Kansas disciplinary administrator. A hearing panel of the Board for Discipline of Attorneys found a violation of KRPC 8.4(b) (criminal misconduct) and noted respondent owes more than $200,000 in outstanding taxes, penalties, and interest. It found six aggravating factors and three mitigating factors and recommended definite suspension of one year with proof of compliance with specific conditions prior to reinstatement. Respondent did not file exceptions. HELD: A majority of the Court rejected the panel’s recommended sanction and imposed indefinite suspension, noting that SCR 219 should be sufficient to protect the public upon petition for reinstatement and that respondent elected not to appear for oral argument before the Court. A minority would impose a less severe sanction.
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IN RE STEPHEN V. SICKEL ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 99,956 – MAY 7, 2008 FACTS: Respondent was a private practitioner from Olathe. He was the subject of a disciplinary hearing on a complaint that he engaged in a conflict of interest when he continued to represent a juvenile after he had inappropriate and unwanted social contact with the client’s mother, failed to provide a timely response to the initial complaint, and engaged in other conduct that adversely reflected on his fitness to practice. While the hearing panel’s report was pending before the Kansas Supreme Court, respondent wrote to the clerk of the appellate courts voluntarily surrendering his license to practice law in Kansas pursuant to SCR 217. HELD: The Court examined the disciplinary administrator’s files, which included a newer complaint alleging similar inappropriate and unwanted social contact with another female client, and found that the surrender should be accepted and respondent disbarred. IN RE FRANK P. TARANTINO ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 99,499 – MAY 16, 2008 FACTS: Respondent, a private practitioner from Kansas City, Mo., was admitted to practice in Missouri in 2000 and in Kansas in 2001. In 2003, his Kansas license was administratively suspended for failure to complete his annual registration requirements. In 2004, he was disbarred in Missouri in a default proceeding when he failed to respond to a “formal information” based on a client complaint. In late 2004, a Kansas proceeding based on the Missouri disbarment was initiated. As in the Harris case also filed this date, respondent claimed that he was filing a petition to set aside the default order in Missouri. When he failed to take this step in the next two years, a formal complaint alleging violation of KRPC 8.4(d) (misconduct prejudicial to the administration of justice) was filed. Respondent failed to appear for the hearing. The panel found clear and convincing evidence of several rules violations based on the documents in the Missouri proceeding and unanimously recommended disbarment. No exceptions were filed. HELD: Respondent failed to appear before the Court. Despite the uncontested nature of the proceeding and the language of SCR 212(d), the Court rejected the panel’s conclusions of violations that had not been considered in Missouri or alleged in Kansas. Also, as in the Harris case above, the Court found respondent’s false statement that he would petition to set aside the default judgment to be a violation of KRPC 8.4(d). The Court noted that respondent also violated SCRs 211 and 212 by failing to respond and appear. IN RE TIMOTHY A. TOTH ORIGINAL PROCEEDING IN DISCIPLINE ONE-YEAR SUSPENSION NO. 99,420 – MAY 23, 2008 FACTS: Respondent was admitted in Kansas in 1990 and has a registration address in Independence, Mo. A hearing on four separate client complaints was held in May 2007. The underlying representation involved a defense of an unspecified civil lawsuit, prosecution of an automobile negligence suit, prosecution of an employment discrimination suit, and prosecution of an adversary proceeding in bankruptcy. The panel found clear and convincing evidence of violations of KRPCs1.1 (competence), 1.3 (diligence), 1.16 (terminating representation), 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 identified five aggravating factors and three mitigating factors, including 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 uncontested findings of fact and conclusions of rules violations. A majority 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 licensed in Missouri. In 2005, his Kansas license was administratively suspended for failure to comply with annual registration requirements, 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 disciplinary proceeding. Three aggravating and three mitigating factors were found. A majority of the panel recommended a definite suspension of one year, while the third member filed a minority final hearing 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 recommended 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 Medical Center LLC (KMC), a hospital that was to be constructed in Andover. Based on these investments, the CHW board voted to redeem 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 regarding the stock redemptions. Along with those actions, KHH alleged 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 physicians filed third-party claims against the directors of CHW and two (Continued on next page) THE JOURNAL OF THE KANSAS BAR ASSOCIATION
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directors of CAW for breach of fiduciary duty for causing the stock redemption. The district court consolidated the cases. On Feb. 22, 2006, the district court granted CHW’s motion for partial summary judgment, ruling that the redemptions of all the physicians’ stock in CHW, except Farhat’s, “were lawful, authorized, and proper.” Influenced, in large part, by its February 2006 decision, the district court later granted CAW’s motion for partial summary judgment as well. ISSUES: (1) Corporations and (2) bylaws HELD: Court stated that a corporate bylaw provision that restricts a shareholder’s eligibility to own shares and requires those shares to be transferred to the corporation when eligibility is lost is a valid restriction on ownership under K.S.A. 17-6426. Court stated the word “redemption” in a corporation’s bylaw is susceptible to more than one meaning and, when considered in the context of the bylaw at issue in this case and Kansas’ statutes, would be understood by a reasonably prudent person to mean a purchase of stock. A bylaw provision having this meaning does not violate K.S.A. 176401 or K.S.A. 17-6410. Court held that under the uncontroverted facts of this case, a corporate board of directors, in applying bylaw provisions restricting ownership, made a business judgment in good faith, with due care, and within the board of directors’ authority. Court also held that in order to create a contract, an acceptance must be unconditional and unequivocal. Under the uncontroverted facts of this case, there is written evidence of an unconditional and unequivocal acceptance of a proposed corporate bylaw amendment, and that acceptance created a contract among the parties. A bylaw provision that establishes a formula for the calculation of the price to be paid when a corporation reacquires stock from a shareholder is not a penalty, even if the formula varies depending upon the circumstances of the reacquisition and is not based upon current market value. STATUTE: K.S.A. 17-6002(a)(4), -6401, -6410, -6426, -6519, -6602
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GRAND JURY AND SUBPOENA TILLER ET AL. V. JUDGES CORRIGAN AND BUCHANAN ORIGINAL ACTIONS IN MANDAMUS – WRITS OF MANDAMUS GRANTED IN PART AND CASES REMANDED TO DISTRICT COURT WITH DIRECTIONS NO. 99,951 – MAY 6, 2008 FACTS: Three consolidated original actions in mandamus were prompted by subpoenas duces tecum issued by a Sedgwick County grand jury summoned in response to a citizen petition under K.S.A. 22-3001, which called for investigation of alleged illegal abortions and other violations of the law by George R. Tiller M.D. and others performing professional services at Women’s Health Care Services Inc. (WHCS) in Wichita. Tiller and WHCS moved to quash the subpoenas directed at WHCS’s records custodian, claiming they encompassed more than 2,000 patient records and thus subjected the recipient to an undue burden and did not comply with the procedure to protect the privacy rights of abortion clinic patients. The district court denied the motions to quash and Tiller and WHCS filed a petition in mandamus seeking an order to quash. ISSUES: (1) Grand jury and (2) subpoenas HELD: Court upheld the constitutionality of the Kansas statute that provides for citizen-initiated grand juries. However, the Court sent the three cases seeking to quash subpoenas issued by a grand jury back to the Sedgwick County District Court. Court held that the Kansas statutes do not violate the separation of powers doctrine. Kansas is one of a few states that authorize citizens to petition for a grand jury investigation. However, the Court said the grand jury’s powers are not unlimited and that grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or with an intent to harass. The opinion instructed the district judges first to determine whether the scope of the subpoenas is too broad and then whether the patient records would be too burdensome to produce. The district court also must
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satisfy itself that the grand jury is not engaging in harassment. If so, the district court should quash the subpoenas. If not, the final issue for the district court is the balance of the patients’ constitutional privacy interests against the state’s compelling interest in prosecuting crimes. Court ordered that, if and when the district court settles on the scope of records for which there is a compelling state interest that justifies intrusions upon the patients’ constitutional privacy rights, the court must permit WHCS to redact all patient identifying information from the records to be produced. In addition, only copies, rather than original records, may be sought. The Court further directed that before any records are shown to the grand jury, they must be reviewed by an independent attorney and independent physician to further redact all irrelevant information. The Court also directed the district court to enter an order prohibiting the distribution or dissemination of any information from the patient records outside the grand jury proceeding STATUTES: K.S.A. 2002 Supp. 22-3101; K.S.A. 22-3001, -3005, -3006, -3008(a), -3012, -3013(1); K.S.A. 60-245; and K.S.A. 65-6703 LOTTERY STATE EX REL. SIX V. KANSAS LOTTERY SHAWNEE DISTRICT COURT – AFFIRMED NO. 99,957 – JUNE 27, 2008 FACTS: The Kansas Attorney General filed an original action in quo warranto and mandamus challenging the expanded gaming legislation passed by during the 2007 legislative session. The Kansas Expanded Lottery Act (KELA) provided for gaming in casinos and parimutuel racetracks in four gaming zones in the state. The Shawnee County District Court held that the statute passed constitutional muster. ISSUE: Does the legislative scheme provide for a lottery that is owned and operated by the state of Kansas? HELD: Court concluded that ownership and operation are flexible concepts. The Court will read a constitutional provision so as to carry out the intention of the citizens when they enacted the provision, and the Court will read a statute with a presumption of constitutionality. The Legislature and citizens amended the constitution in order to provide a mechanism for raising revenues for the state and for promoting economic growth, goals that KELA is structured to accomplish. KELA, while not providing for total and unambiguous ownership and operation by the state, contains sufficient indices of ownership and control for it to comply with the constitutional mandate. STATUTES: K.S.A. 2007 Supp. 60-2102(b)(2); K.S.A. 2007 Supp. 74-8702, -8723, -8733, -8734(d), -8737, -8741(a), -8749, -8750, -8766; K.S.A. 74-8701, -8801; and K.S.A. 75-702 MEDICAL MALPRACTICE, STANDARD OF CARE, AND EXPERT TESTIMONY ESQUIVEL ET AL. V. WATTERS ET AL. COWLEY DISTRICT COURT REVERSED AND REMANDED COURT OF APPEALS – REVERSED NO. 94,691 – MAY 23, 2008 FACTS: In November 2001, Esquivel had a gender determination sonogram performed at the South Central Kansas Regional Medical Center. The ultrasound technician observed a fetal abnormality that he believed was gastroschisis, a condition in which the bowel is situated outside the body. The radiologist refused to review the film because the sonogram was not a diagnostic procedure. The technician told Dr. Watters of the observed abnormality, but this phone call was not documented in Esquivel’s medical records. Watters’ office tried to contact Esquivel numerous times to have her come to the office and even spoke with Esquivel’s husband. Esquivel did not come to the office and did not come to a scheduled appointment THE JOURNAL OF THE KANSAS BAR ASSOCIATION
during the next several months. The next time Esquivel came to an appointment, Watters had forgotten about the phone call with the technician. In February 2002, Esquivel became extremely ill and had a emergency C-section and the gastroschisis was discovered. Watters was out of town and did not participate in the delivery. The baby died approximately a month later. The district court granted summary judgment to Watters in finding that plaintiffs had failed to present expert testimony to establish that the doctor had deviated from the applicable standard of care or that the doctor’s failure to notify Michelle of the abnormal sonogram was the proximate cause of the baby’s postnatal suffering and death. In granting judgment to South Central Kansas Regional Medical Center, the district court opined that the facility did not owe Michelle and Jesse the duty upon which they based their claims and that the claims were barred by the release form Michelle signed prior to receiving the sonogram. The Court of Appeals affirmed the summary judgment for South Central Kansas Regional Medical Center on both bases utilized by the district court, i.e., an absence of duty and a waiver of liability. With respect to Watters, the Court of Appeals disagreed with the district court’s ruling that the plaintiffs’ expert had failed to present evidence that the doctor had deviated from the applicable standard of care. However, the appellate court affirmed the holding below that plaintiffs’ expert had failed to present evidence of a causal link between Watters’ breach of duty and the actual injuries and damages sustained by the plaintiffs. ISSUES: (1) Medical malpractice, (2) standard of care and (3) expert testimony HELD: Court stated the sole issue was the causation element of whether the Esquivels supplied sufficient evidence of causation through their expert, Dr. Giles, to avoid summary judgment. Court stated that Giles’ report contained a clear opinion that Watter’s breach of duty caused the injuries to the baby. Court stated that the Court of Appeals put great stock in the conclusion that the baby’s bowel had been dead for weeks prior to delivery because Dr. Knight, the doctor that performed surgery on the baby after delivery, did not testify as an expert and did not testify that the predelivery necrosis of the bowel was the proximate cause of the baby’s death. Court found that by drawing that inference, the Court of Appeals incorrectly resolved the matter in favor of the summary judgment movant. Court concluded that the plaintiffs provided expert testimony on causation and that expert opinion was not rendered incredible by the testimony of a fact witness, so that the unusual remedy of summary judgment on the fact issue of causation was erroneous. STATUTES: NONE DISSENT: Justices Beier and C.J. McFarland dissented finding plaintiff’s expert was clearly capable of describing the problems that may arise when a physician performing a Caesarean section is unaware of gastroschisis in the baby he or she is delivering. But neither the expert nor the plaintiffs pointed to any documentary or testimonial evidence that such problems did arise in this case.
Criminal STATE V. CRUM SEDGWICK DISTRICT COURT – AFFIRMED NO. 95,729 – MAY 16, 2008 FACTS: In 2005, John Neal died of multiple blunt force and sharp force injuries. A large number of people testified to the events surrounding the homicide. The testimony indicated that Crum used a wood handled hammer in killing Neal. DNA from the hammer matched Neal’s DNA. Neal’s DNA was contained in blood and matter found on Crum’s shoes. Crum claimed he slept through the entire ruckus and that his shoe was contaminated when he later went out to observe Neal’s body. JULY/AUGUST 2008 – 41
ISSUES: (1) Prosecutorial misconduct, (2) admission of evidence, (3) appointed counsel, (4) violation of limine order, and (5) cumulative error HELD: Court held that the prosecutor’s statements were fair comment on the defense tactic of suggesting to the jury that the inconsistencies in the testimony of the state’s witnesses proved the testimony to be false. Court stated that if the defense attempts to put the state’s witnesses on trial, the prosecutor can point that out to the jury. Court also found that the prosecutor’s questions to the defendant about the weight that the defendant would give another witness’s inconsistent testimony was improper. However, the Court found that the impropriety of the prosecutor’s questions was tempered by the defendant’s responses because Crum’s responses ameliorated, if not negated, the prosecutor’s intended result, and that beyond a reasonable doubt the questioning did not change the result of the trial. The Court found it was concerned how the prosecutor used Crum’s improperly elicited opinion testimony on premeditation in its closing argument to suggest that the state had been absolved of its duty to prove the critical element of premeditation. However, the Court found the evidence of Crum’s guilt to be overwhelming and the error harmless. Court found no error in a photograph that was not displayed to any witness or testimony given, but that it went to the jury during deliberations along with all of the other properly admitted exhibits. Court held that Crum failed to establish a justifiable dissatisfaction with his appointed counsel such that a denial of his motion to substitute counsel constituted an abuse of discretion. Court found a photograph of Neal’s body at the crime scene, showing his face and upper chest and one arm, bent to reveal a bagged hand was relevant and not unduly prejudicial. Court found no reversible error in violation of the sequestration order or in Crum’s alleged violation of the order in limine. Court also stated the case did not present one of cumulative error necessitating a new trial. STATUTES: K.S.A. 22-2903 and K.S.A. 60-261, -456(a) STATE V. BROWN SHAWNEE DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 96,862 – MAY 16, 2008 FACTS: Brown charged with aggravated battery and abuse of a child. Citing Social and Rehabilitation Services pressure on Brown to admit a role in his child’s injuries, district court found Brown’s confession was not free and voluntary and suppressed the confession. State filed interlocutory appeal. In unpublished opinion, Court of Appeals affirmed. State’s petition for review granted. ISSUE: Privilege against self-incrimination HELD: If a parent is compelled to admit to criminal acts or face the loss of parental rights, the incriminating statements will be excluded from evidence when the parent becomes a defendant in criminal proceedings. Court of Appeals correctly affirmed the suppression of Brown’s confession in this case. STATUTES: None DEAL V. STATE MIAMI DISTRICT COURT – AFFIRM NO. 98,553 – JUNE 27, 2008 FACTS: Deal was convicted by a jury of first-degree murder in 1999 and sentenced to 25 years in prison. His conviction was affirmed on appeal. His 60-1507 motion claiming ineffective assistance 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 complaint 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
HELD: Court stated that K.S.A. 22-3504 only applies if a sentence is illegal. The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is unambiguous with regard to the time and manner in which it is to be served. Court held that where the relief sought is reversal of a conviction rather than the correction of an illegal sentence, K.S.A. 22-3504 is unavailable as a vehicle to obtain such relief and the district court should have denied relief on that basis. SATUTES: K.S.A. 22-3504, -3601(b)(1) and K.S.A. 60-1507 STATE V. FEWELL SHAWNEE DISTRICT COURT – AFFIRMED COURT OF APPEALS – AFFIRMED NO. 95,041 – MAY 30, 2008 FACTS: Fewell was stopped for speeding, detained, and eventually searched after officer first questioned passenger (Brown) about the odor of burnt marijuana and arrested Brown based on evidence found in pat-down search. Officer then did pat-down search of Fewell, finding drug evidence. District court denied Fewell’s motion to suppress that evidence as fruit of an illegal search, based on State v. MacDonald, 253 Kan. 320 (1993). Fewell appealed, claiming (1) error to deny motion to suppress, (2) prosecutorial misconduct required reversal of his convictions, and (3) cumulative error denied him a fair trial. He also claimed the use of his criminal history to enhance severity level of his conviction at sentencing violated the Sixth Amendment. Court of Appeals affirmed in divided opinion, 37 Kan. App. 2d 284, finding smell of marijuana and officer’s experience in detecting marijuana provided probable cause for the search, and exigent circumstances justified the warrantless search of Fewell’s person. Dissent found the search was not supported by probable cause. Fewell’s petition for review granted. ISSUES: (1) Motion to suppress, and (2) prosecutorial misconduct HELD: Close case, but under totality of circumstances that included more than odor of burnt marijuana, probable cause existed for the search of Fewell’s person. Fewell did not argue in petition for review that warrantless search was not justified by exigent circumstances. Prosecutorial misconduct claims appear to be evidentiary issues not objected to during trial. No prosecutorial misconduct found. Prosecutor did not question officer to elicit comments on Fewell’s credibility, and did not comment on excluded and redacted evidence. No merit to claim of cumulative trial error. Supreme Court, federal circuit courts, and Kansas Supreme Court continue to hold that use of prior convictions for sentencing enhancement is constitutional. State v. Ivory, 273 Kan. 44 (2002), remains good law. CONCURRING AND DISSENTING: (Luckert, J., joined by Rosen and Johnson, JJ.): Dissent from majority’s determination that there was probable cause to search Fewell. Disagrees with majority’s conclusion that officer’s investigation did not lessen the reasonable suspicion that arose from Fewell’s presence in a vehicle that smelled of burnt marijuana, and finds no circumstance that raises a particularized suspicion that Fewell engaged in illegal activity. STATUTE: K.S.A. 21-4701 et seq., 60-261, -404
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STATE V. GREEVER RENO DISTRICT COURT – AFFIRMED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – REVERSED NO. 95,303 – MAY 16, 2008 FACTS: Officer Justin Maxfield stopped Greever for failing to properly use turn signal. As he spoke with Greever at the driver’s side window, Maxfield smelled the odor of marijuana and observed what he thought was drug paraphernalia. Maxfield had Greever exit the vehicle and advised him of his Miranda rights. Maxfield said that he had no marijuana and indicated that he wanted to call his lawyer before any pat-down search. Without allowing Greever to call his lawyer, Maxfield conducted a pat-down search and found marijuana in his pocket. On the way to the station, Greever told the officers that he intended to tell the district court that it should either deport him, kill him, or accept him as he was because he wasn’t going to stop using marijuana. After denial of his motion to suppress, Greever was convicted of possession of marijuana and no drug tax stamp. The Court of Appeal reversed Greever’s conviction finding the initial traffic stop was illegal. ISSUES: (1) Fourth Amendment and (2) search and seizure HELD: The Court held the issue of whether the smell of marijuana provided probable cause was not properly preserved for the Court’s consideration. The Court found that the encounter between Maxfield and Greever was not a voluntary encounter and consequently was a seizure under the Fourth Amendment. Court held that Maxfield observed Greever’s vehicle approach the deputy from the rear and that Greever did not activate his turn signal until he was stopped behind the patrol car. This was a failure to properly use a turn signal. Because Maxfield had probable cause and reasonable suspicion to stop, the seizure by Maxfield did not violate Greever’s Fourth Amendment rights. Court held the district court properly denied the motion to suppress. STATUTES: K.S.A. 8-1514(a), -1548; K.S.A. 21-3204(1); and K.S.A. 22-2402(1) DISSENT: Justice Johnson dissented. STATE V. REID JOHNSON DISTRICT COURT – AFFIRMED NO. 93,646 – JUNE 27, 2008 FACTS: Reid was convicted by a jury of first-degree murder of a Texaco store’s assistant manager and of aggravated robbery of the business. Reid executed the assistant manager with a shot in the back of the head. Reid had worked as a cashier at the store for about a year and a half before being fired for stealing six months prior to the crime. Reid’s accomplice was Williams. Besides the cash register, the robber was also able to take money out of the drop/floor safe, the back office safe, and the car wash coin box — places about which customers would not generally know and to which only the manager or assistant manager had access by key or combination. The jury acquitted Reid of three counts of vehicle burglary and two counts of theft based on actions several hours prior to the murder. ISSUES: (1) Prior crimes evidence, (2) jury instructions, (3) motion to sever, (4) accomplice instruction, (5) lesser included instructions, (6) cumulative error, and (7) hard 50 sentence HELD: Court held the trial court did not commit reversible error in admitting evidence that Reid had been fired for stealing and in failing to give a limiting instruction. Court held that the firing for theft had a tendency in reason to prove Reid had unique knowledge of the store’s procedures and safeguards and would be correctly admitted into evidence on this basis. Court stated the trial court’s failure to give a limiting instruction was not clear error. Court held the trial court did not err in giving the pattern jury instruction on eyewitness identification. Court concluded that the trial court did THE JOURNAL OF THE KANSAS BAR ASSOCIATION
not err in denying Reid’s request to sever his trial from his codefendant Williams. Reid claimed this deprived him of the right to an accomplice instruction. Court stated severance lies within the discretion of the trial court and Reid’s acquittal and the natural skepticism of a codefendant’s testimony in a joint murder trial do not indicate that Reid was prejudiced by the failure to sever and the failure to give an accomplice instruction. Court stated there was no evidence upon which the jury could reasonably convict Reid of the lesser included offenses and the trial court’s failure to instruct was not erroneous. Court found no cumulative error. Court reaffirmed the constitutionality of Kansas’ hard 50 sentencing scheme and that a robbery that immediately preceded the killing of the victim qualified as an aggravating circumstance to justify imposition of the hard 50 sentence under K.S.A. 21-4636(c), which provides that “[t]he defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value.” STATUTES: K.S.A. 21-3402, -3404, -3426, -3427, -4636(c); K.S.A. 22-3202, -3204, -3414, - 3601(b)(1); and K.S.A. 60-401, -407, -455, -447, -448 CONCURRENCE: Justice Johnson concurred with the court’s finding on a murder “for the purpose of receiving” money or property. STATE V. SCOTT SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, DEATH SENTENCE VACATED, AND REMANDED NO. 83,801 – MAY 16, 2008 FACTS: Scott convicted of felonies, including capital murder of Elizabeth Brittain (EB) and premeditated first-degree murder of Douglas Brittain (DB). Wakefield convicted in separate trial for his involvement in these offenses. After trial court set aside jury’s death verdict and conducted a new penalty phase, that jury again returned death verdict. On appeal from guilt phase, Scott (1) challenged the legal sufficiency of the capital murder charge, and (2) argued the premeditated murder charge as multiplicitous to the capital murder charge. He also claimed the district court erred in the guilt phase by (3) denying Scott’s motion to suppress statement, (4) failing to properly instruct on capital murder charge, (5) not granting a new trial based on prosecutorial misconduct, and (6) allowing prosecutor to read jury statements made by Wakefield’s defense attorney during closing argument in that trial. He also claimed (7) cumulative error denied him a fair trial. In the penalty phase, Scott challenged (8) the constitutionality of the weighing equation in K.S.A. 21-4624(e), (9) the relaxed evidentiary standard for penalty phase set forth in K.S.A. 214624(c) as denying due process, and (10) the notice provisions in K.S.A. 21-4624(a) as unconstitutional because they do not require the state to specify the aggravating factors in the information. He also claimed (11) juror misconduct during the first penalty phase denied him a verdict of life, thus death sentence could not be constitutionally imposed, (12) trial court failed to instruct jurors they need not unanimously agree regarding the existence of mitigating circumstances, (13) jury’s finding of aggravating circumstance of creating risk of death to more than one person should be set aside, (14) jury should not have been allowed to consider aggravating factor that he committed the crime for purpose of receiving money because K.S.A. 21-4625(3) applies only to murder for hire situations or where defendant kills to obtain inheritance, (15) trial court failed to explicitly instruct jury that “the crime” for the aggravating factor of committing crime for money meant the capital murder of EB, (16) there was prosecutorial misconduct during closing argument in penalty phase, and (17) error to admit special evidence of special verdict form from guilt phase that state Scott individually and personally killed or intended to kill DB. JULY/AUGUST 2008 – 43
ISSUES: (1) Capital murder charge, (2) multiplicity, (3) motion to suppress, (4) jury instructions, (5) prosecutorial misconduct, (6) closing argument, (7) cumulative error, (8) constitutionality of weighing equation, (9) constitutionality of relaxed evidentiary standard, (10) constitutionality of notice provisions, (11) juror misconduct, (12) juror unanimity on mitigating circumstances, (13) aggravating circumstances of creating risk of death to more than one person, (14) aggravating factor of committing crime for purpose of receiving money, (15) failure to define “the crime,” and (16) use of special verdict form HELD: Guilt Phase Although preferable for state to have explicitly alleged in the count charging capital murder that Scott killed DB, the omission was not fatal or prejudicial. Murder of DB was a crime necessarily proved under the charge of capital murder, accordingly, Scott’s convictions were multiplicitous because K.S.A. 21-3107(2)(d) (Furse) is clear expression of legislative intent that a defendant cannot be convicted of both a charged and a lesser included offense arising out of the same conduct. Scott’s conviction for first-degree premeditated murder of DB is reversed. Scott’s request to defer interrogation was not an unequivocal invocation of right to remain silent. Although state failed to provide timely arraignment on criminal possession of firearm charge, no prejudice resulted from any unnecessary delay. Pattern Instruction is deficient because it does not require a claim that Scott killed DB, but instructions read as a whole were sufficient. Under facts of case, no error in instructing jury on definition of premeditation, and any error would have been harmless under the circumstances. Trial courts are urged to use definition of premeditation in Pattern Instructions for Kansas (PIK) Crim. 3d 56.04(b). Prosecutor telling jurors to honor their oath and return a verdict of guilt was improper, as were some of prosecutor’s references to Scott as a “murderer” and “killer” and reference to facts outside the evidence. Under the circumstances, district court’s refusal to grant a new trial was not inconsistent with substantial justice, and prosecutor’s prejudicial remarks likely had little weight in minds of jurors. District court erred in allowing state to read to jury statements made by Wakefield’s attorney in Wakefield’s trial, but error was harmless. Trial errors identified in this case did not prejudice Scott’s right to a fair trial or influence the jury’s verdict. HELD: Penalty Phase Brief history of constitutionality of weighing equation of K.S.A. 21-4624(e) is discussed. That statute does not violate §§ 9 and 18 of Kansas Constitution Bill of Rights. Scott’s argument for additional jury instruction — that life imprisonment is the presumed appropriate sentence, and that state must overcome that presumption for death sentence — is rejected. The relaxed evidentiary standard for penalty phase set forth in K.S.A. 21-4624(c) is sufficient to protect the defendant’s right to a fair trial and does not violate U.S. or Kansas constitutions. Notice provisions in K.S.A. 21-4624(a) and (c) are sufficient to provide the defendant with meaningful notice and an opportunity to respond to aggravating factors in compliance with Sixth Amendment. Under facts of case, juror misconduct during the first penalty phase trial did not deny Scott a verdict of life, and thus did not preclude subjecting him to the death penalty in a subsequent penalty proceeding for the same offense. Under facts of case, reviewing instructions as a whole, there is substantial probability that reasonable jurors could have believed unanimity was required to find mitigating circumstances. Trial court’s failure to provide jury with proper standard for determin44 – JULY/AUGUST 2008
ing mitigating circumstances is reversible error. Death sentence is reversed. Case is remanded to district court for new capital sentencing hearing. Court joins majority of jurisdictions that have concluded that duplicating an element of the crime as an aggravating circumstance in the penalty phase of the trial is constitutional and conforms to legislative intent. Scott’s remaining claims are speculative and can be addressed on remand. K.S.A. 21-4625(3) is not limited to cases involving murder for hire or where the defendant kills victim to obtain an inheritance. The statute comports with Eighth Amendment requirement of distinguishing murders, which are eligible for death penalty from murders that are not. “The crime” is inadvisable under the circumstances of this case and, under other circumstances, might very well be prejudicial. To avoid error, PIK Crim. 3d 56.00-C(3) should be revised to specifically designate the crime of capital murder. On remand, trial court should conform its instruction accordingly. Claims of prosecutorial misconduct in closing argument of penalty phase are examined, finding error in prosecutor’s claim of “phantom remorse” by Scott, which is not to be used on remand. Special verdict form was not necessary, and is disapproved for use in future capital proceedings. On remand, however, the sentencing jury will be informed Scott has been found guilty of capital murder for the intentional and premeditated killing of the Brittains. CONCURRING (Johnson, J.): Concurs with the result, but writes separately to take issue with applicability of aggravating factor in K.S.A. 21-4625(3). Agrees with Scott’s argument that this factor should apply only to scenarios such as murder for hire or killing to obtain an inheritance. Precedent in hard-40 cases does not necessarily extend to death penalty cases. Facts of this case would not support a finding that Scott committed the murder for the purpose of receiving money or property. STATUTES: K.S.A. 21-3107(2), -3107(2)(d), -3401(a), -3436, -3439, -3439(a)(6), -4624, -4624(a), -4624(c), -4624(e), -4625, -4625(2), -4625(3), -4635, 22-2901, -2901(1), -3201(b), 60- 261, -460(g); K.S.A. 21-3107(2)(d), -4624(e) (Furse); and K.S.A. 21-4624(d) (Torren) STATE V. SKOLAUT SEDGWICK DISTRICT COURT – STATE’S APPEAL ON QUESTION RESERVED IS SUSTAINED IN PART AND DENIED IN PART COURT OF APPEALS – DISMISSAL OF THE APPEAL IS REVERSED NO. 97,401 – MAY 16, 2008 FACTS: District court reinstated probation, refusing to consider Skolaut’s misconduct occurring after his probation term but during pendency of his probation violation proceedings. State appealed the ruling on a question reserved, which the Court of Appeals dismissed in an unpublished opinion, apparently for lack of jurisdiction. State’s petition for review granted. ISSUES: (1) Appellate jurisdiction and (2) probation violation proceedings HELD: Under facts of case, Court of Appeals erred in dismissing state’s appeal and applied a too limited standard as to whether to accept an appeal on a question reserved. State’s appeal is reinstated. State’s appeal on a question reserved is sustained in part and denied in part. Under plain reading of Kansas statute, and the combined weight of authority from Kansas and other jurisdictions, district court correctly held that postprobationary-period conduct cannot be considered by the court during the violation stage of the proceedings, but incorrectly held that the conduct cannot be considered during the disposition stage. THE JOURNAL OF THE KANSAS BAR ASSOCIATION
STATUTES: K.S.A. 2006 Supp. 22-3602(b)(3); and K.S.A. 223602(b)(3), -3716, -3716(a), -3716(b) STATE V. SMITH COWLEY DISTRICT COURT – AFFIRMED AND REMANDED COURT OF APPEALS – REVERSED NO. 96,189 – MAY 30, 2008 FACTS: Officer investigated car with broken taillight and expired tags. Second officer at scene questioned passenger (Smith) who was sitting near the vehicle, and obtained consent to search Smith’s purse where drug evidence led to her arrest. District court granted Smith’s motion to suppress evidence, finding Smith had been lawfully seized but questioning at the scene improperly exceeded the scope of stop, and finding Smith’s consent did not remove taint of Fourth Amendment violation. State filed interlocutory appeal. Court of Appeals reversed, finding questioning was no longer illegal after Muehler v. Mena, 544 U.S. 93 (2005), and consent provided legal basis for the 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)
STATE V. STOWELL RENO DISTRICT COURT – REVERSED AND REMANDED, COURT OF APPEALS – AFFIRMED NO. 96,091 – MAY 16, 2008 FACTS: Stowell convicted of drug charges. District court denied Stowell’s motion to suppress evidence from traffic stop, finding the drugs on Stowell’s key chain inevitably would have been discovered when Stowell’s personal property was inventoried. In unpublished opinion, Court of Appeals reversed, concluding in part that state failed to demonstrate the inevitability of the discovery. State’s petition for review granted. ISSUE: Inevitability doctrine HELD: Under facts of case, the inevitable discovery doctrine cannot convert unlawfully obtained evidence into admissible evidence because prosecution failed to establish the evidence ultimately or inevitably would have been discovered by lawful means. STATUTE: K.S.A. 8-1573(a), 20-3018(b), 22-2901, -3602(e)
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 greenc@kscourts.org. 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. THE JOURNAL OF THE KANSAS BAR ASSOCIATION
JULY/AUGUST 2008 – 45
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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 smckaskle@ksbar.org. 46 – JULY/AUGUST 2008
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Court of Appeals Civil ADVERSE POSSESSION CHESBRO V. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY DOUGLAS DISTRICT COURT – AFFIRMED NO. 98,545 – JUNE 27, 2008 FACTS: In December 2004, Chesbro purchased 173.79 acres of real estate near Lone Star Lake in Douglas County from Alvin Fishburn. Fishburn had owned the property since at least 1972. The property is located next to land owned by the county that is a part of Lone Star Lake park. A public park access drive, Douglas County Road 1-E, runs somewhat parallel to the property line of Chesbro’s property. In May 1972, Fishburn appeared before the Board of County Commissioners of Douglas County (Board) to discuss constructing a boundary line fence between his property and the northeast boundary line of the Lone Star Lake area owned by the county. Fishburn and the Board agreed to the construction of the line fence and split the costs of the materials equally. The line fence was then constructed along the boundary line where such construction was physically possible. There was at least 10 feet between the edge of the pavement for the park access drive and the fence line. In a July 2006 affidavit, Fishburn stated that he believed the fence had been constructed more than 25 years ago. Fishburn further stated that the fence was in the same location as when it was constructed. Fishburn and his wife conveyed the real estate to Chesbro with a general warranty deed. In late 2005, Chesbro applied to the County Department of Public Works for a residential entrance permit from his property onto Douglas County Road 1-E. The county denied the application and Chesbro appealed. The trial court denied the Board’s motion for summary judgment on an agreed boundary theory. Nevertheless, the trial court granted the Board’s motion for summary judgment on its adverse possession theory. ISSUE: Adverse possession HELD: Court held the uncontroverted evidence established that the county had acquired the subject property by adverse possession through a belief of ownership for the requisite 15-year period under K.S.A. 60-503. Because Chesbro failed to bring forth evidence establishing a material dispute of fact as to the Board’s adverse possession claim, Chesbro’s argument failed. Court also disagreed with Chesbro’s argument that the trial court erred in granting summary judgment on his claim that the Board’s denial of his residential entrance permit application was made in an arbitrary and capricious manner. Court stated that because Chesbro’s land did not abut the county road and Chesbro did not show that he had a legal right to access the road from his property, the Board was well within its authority to deny Chesbro a residential entrance permit. Court concluded the Board’s decision was not arbitrary or capricious. STATUTES: K.S.A. 60-256(e), -503, -2103(h); and K.S.A. 77621(c)(8) EMPLOYMENT AND CIVIL SERVICE BOARD ZOELLNER V. CIVIL SERVICE BOARD OF LEAVENWORTH COUNTY LEAVENWORTH DISTRICT COURT – AFFIRMED IN 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
shooting of a dog was not justified, and that Freeman had violated department policy when he discharged his weapon. Freeman was terminated. The Civil Service Board sustained Freeman’s dismissal, but directed that Freeman be “transferred to a comparable position in the Jail Division.” Zoellner appealed arguing the Board had exceeded its authority. The district court granted summary judgment to the Board finding the Board had express authority to review a sheriff’s decision regarding employment matters. However, the court held that Board exceeded its authority by placing Freeman back in the same department. ISSUES: (1) Employment and (2) Civil Service Board HELD: Court held that when a county civil service board sustains a sheriff’s dismissal of a deputy, it does not have the authority to require the sheriff to rehire the deputy, create a position for the dismissed deputy, or force another entity to hire the dismissed deputy. Court stated that a county civil service board does not have the authority to transfer a dismissed sheriff’s deputy to another law enforcement agency. STATUTE: K.S.A. 19-805(d), -4303, -4311, -4314, -4316, -4327(d)(3) CONTRACTS AND LIQUIDATED DAMAGES CARROTHERS CONSTRUCTION COMPANY LLC V. CITY OF SOUTH HUTCHINSON RENO DISTRICT COURT – AFFIRMED NO. 98,023 – MAY 23, 2008 FACTS: In 2002, Carrothers executed a contract with the city of South Hutchinson to construct a wastewater treatment facility for $5.618 million. The contract provided Carrothers should reach substantial completion of the project by July 15, 2003, and final completion by Aug. 14, 2003. The engineering company hired by the city, MKEC Engineering Consultants Inc. (MKEC), assisted in drafting the contract, which included a “time is of the essence” clause and a provision for liquidated damages. An MKEC employee, David Chase, performed the calculations for the liquidated damages provision. MKEC’s manager of environmental engineering, Lynn Moore, discussed the calculations with Chase and approved the provision. Although several changes ordered extended the deadlines for about a week, Carrothers did not reach substantial completion until Jan. 12, 2004. The city withheld $145,350 as liquidated damages. The district court granted summary judgment in favor of the city, finding the contract was unambiguous and the amount of liquidated damages was reasonable in relation to the potential injuries suffered by the city as a result of the delays in completing the wastewater treatment facility. ISSUES: (1) Contracts and (2) liquidated damages HELD: Under the plain language of the contract and the undisputed facts of this case, court held the district court did not err in determining the substantial and final completion dates of the contract. Court also held that the amount of liquidated damages under the contract was reasonable when viewed prospectively and also when viewed in relation to the actual damages caused by the breach. Furthermore, the nature of the transaction was such that the amount of actual damages resulting from default was not easily and readily determinable. STATUTES: None
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HABEAS RAWLINS V. STATE JOHNSON DISTRICT COURT REVERSED AND REMANDED NO. 97,260 – MAY 16, 2008 FACTS: Rawlins filed K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. Approximately one month later, she completed probation and was discharged. District court later dismissed the pending 1507 motion, concluding it lacked jurisdiction because Rawlins was no longer in state custody. Rawlins appealed. On appeal, state argued the 1507 motion was never started during Rawlins’ probation because there was no timely service of the motion. ISSUES: (1) Appellate jurisdiction, (2) service of motion, and (3) ineffective assistance of counsel HELD: Kansas cases do not answer this jurisdictional question, but federal cases do. Under facts of case, where Rawlins was on probation when she filed her 1507 motion but completed probation before the court could rule on that motion, the district court did not lose jurisdiction to decide the motion. Possible adverse collateral consequences of Rawlins’ conviction kept the case from becoming moot. Under facts of case, state waived the service issue. Allegations of ineffective assistance of counsel are examined. Case is remanded for evidentiary hearing on two of Rawlins’ five claims. STATUTES: 28 U.S.C. §§ 224(a) and 2255; and K.S.A. 60212(b), -212(h), -1507, -1507(a) HABEAS CORPUS HICKSON V. STATE SEDGWICK DISTRICT COURT – APPEAL DISMISSED NO. 97,752 – MAY 16, 2008 FACTS: In Hickson’s criminal case, district court granted Hickson extra time to file a motion under K.S.A. 60-1507 and denied Hickson’s request for transcripts. District court then denied Hickson’s second motion for extension of time. Hickson appealed. ISSUE: Filing post-collateral motion HELD: Under facts, Hickson’s criminal case was finished, and he did not file a 1507 motion. No rule of law in Kansas allows a judge to rule on a civil motion in an ended criminal case. There is no showing that an extension of time would prevent manifest injustice, and no evidence that Hickson was prevented from filing a timely 1507 motion. District court lacked jurisdiction to grant or deny Hickson’s motion because it had nothing to do with the criminal cause of action. STATUTE: K.S.A. 22-4506, 60-203, -1501, -1507, -1507(a), -1507(f )(2) HABEAS CORPUS AND ABUSE OF REMEDY TONEY V. STATE SEDGWICK DISTRICT COURT – AFFIRMED NO. 97,756 – JUNE 27, 2008 FACTS: Toney was convicted of aggravated burglary, criminal possession of a firearm, and aggravated robbery in November 2000. His conviction was affirmed on direct appeal. His 60-1507 motion attacking the sufficiency of the evidence was denied and the district court’s decision was affirmed on Feb. 3, 2006. In July 2006, Toney filed another 60-1507 motion alleging his trial counsel was ineffective. After a nonevidentiary hearing, the trial court summarily denied relief as untimely and an abuse of the remedy. ISSUES: (1) Habeas Corpus and (2) abuse of remedy HELD: Court held that under the facts of this case, the movant’s allegation that his ineffective assistance of counsel claim will never be considered due to the trial court’s denial of his untimely K.S.A. 60-1507 motion was insufficient to establish manifest injustice to extend the one-year time limitation of K.S.A. 60-1507(f )(1). Court 48 – JULY/AUGUST 2008
also held the trial court properly denied the K.S.A. 60-1507 motion as successive where the movant failed to allege any unusual events or intervening changes in the law that prevented him from reasonably being able to raise his claim in his previous K.S.A. 60-1507 motion. STATUTE: K.S.A. 60-1507 LEGAL MALPRACTICE AND EXPERT TESTIMONY SINGH V. KRUEGER LYON DISTRICT COURT – AFFIRMED NO. 97,919 – MAY 9, 2008 FACTS: Singh, an over-the-road truck driver, pled guilty to one count of conspiracy to deliver marijuana and one count of no tax stamp after more than 300 pounds of marijuana were found in his semi-trailer truck. Singh was represented by Krueger. In September 2004, Singh filed a motion to withdraw his guilty plea, arguing that Krueger was ineffective because he spent less than one hour with Singh prior to his plea, never reviewed the affidavit in support of the complaint with Singh, failed to provide adequate information about the possibility of deportation, and was mistaken as to the likelihood of federal pre-emption. The district court determined that Singh received ineffective assistance of counsel and set aside his plea. In the journal entry, the district court stated that were it not for Krueger’s “unprofessional errors,” there was a reasonable probability that Singh would have proceeded to trial. A disciplinary investigation determined that none of Krueger’s actions rose to the level of professional misconduct. In October 2005, Singh filed a petition claiming that Krueger breached his contract with him when Krueger committed legal malpractice and failed to perform certain duties while representing Singh. The district court ruled this was not the type of case that could be tried without an expert because none of the issues raised by Singh were within “the common knowledge of a lay person” and that Singh failed to present the needed expert testimony. Krueger’s motions for summary judgment and dismissal were granted. ISSUES: (1) Legal malpractice and (2) expert testimony HELD: Court held the intricacies of the interplay between state and federal jurisdiction, the customs of a particular court, and the federal law surrounding immigration and deportation are all specialized areas of the law about which a lay juror would not know. Without any expert witnesses, the court held the district court did not err in granted summary judgment to Krueger. STATUTES: None MECHANIC’S LIEN ALLIANCE STEEL V. PILAND ET AL. FINNEY DISTRICT COURT – AFFIRMED NO. 98,762 – JUNE 27, 2008 FACTS: The Pilands own reality in Finney County and desired to construct a metal building on their property. The bid went to Dunlap Construction and Associated Construction, but the precise relationship between the two is the crux of the litigation. Grooms, d/b/a/ Associated Construction, did not have a general contractor’s license in Finney County. Grooms arranged for the steel building materials with Alliance Steel, and listed himself as the general contractor on Alliance’s jobsite information sheet. Alliance filed its mechanic’s lien on Dec. 17, 2003, listing Grooms and his company as general contractor. Alliance sought to foreclose its lien in Finney County, but the Pilands were successful in dismissing that action based on the failure of Alliance to be registered to do business in Kansas. The Court of Appeals reversed that dismissal and then the Piland’s were granted summary judgment because the lien listed an incorrect person as general contractor and was not timely filed. ISSUE: Mechanic’s lien HELD: Court stated that it is not fatal to the lien for the lien statement to have an erroneous date for the time materials or labor THE JOURNAL OF THE KANSAS BAR ASSOCIATION
were provided, so long as the filing date is within the time specified by the applicable statute from the actual date materials or labor were last supplied by the claimant. Court held the district court erred in finding the lien statement to have been untimely filed. However, the court affirmed the district court’s decision on the basis that there was no genuine issue of material fact as to the identity of the general contractor and Alliance’s lien was fatally defective due to its failure to designate that contractor on its lien statement as required by Kansas law. Court stated the lien claimant’s agreement to supply materials was not with a contractor, and any lien rights of this claimant were subject to attachment in the precise manner prescribed by the statute and in no other manner. The failure of the lien claimant to state the name of the general contractor on its lien statement was fatal to its lien. STATUTE: K.S.A. 60-1101, -1102, -1103 DISSENT: Judge Leben dissented by not agreeing that Alliance lacked sufficient evidence that Grooms was a general contractor. Because reasonable minds can and do disagree with the district court’s conclusion that Dunlap was the sole general contractor, Leben would reverse the judgment of the district court and remand the case for a trial where a fact-finder would resolve this genuine factual issue. MENTAL HEALTH IN RE CARE & TREATMENT OF COLT SHAWNEE DISTRICT COURT – AFFIRMED NO. 98,105 – MAY 9, 2008 FACTS: Colt involuntarily committed under Kansas Sexually Violent Predator Act (KSVPA), after jury found him to be a sexually violent predator. On appeal, Colt argued the district court erred in admitting evidence of Colt’s prior juvenile adjudications and convictions for crimes not sexually motivated. He also challenged the sufficiency of the evidence supporting his commitment. ISSUES: (1) Admission of evidence in KSVPA proceeding and (2) sufficiency of evidence HELD: Brief overview of KSVPA given. In a KSVPA proceeding, evidence of the respondent’s general criminal history — even if not of a sexually violent nature — is not barred by K.S.A. 60-455 because that statute is not applicable in KSVPA proceedings. In re Care & Treatment of Hay, 263 Kan. 822 (1998), remains good law even after State v. Gumby, 282 Kan. 39 (2006). Colt’s general criminal history, including nonsexually violent conduct, was significant to clinical diagnoses having a direct relationship to the ultimate issue in the KSVPA proceeding and thus was relevant and admissible evidence. Under facts of case, Colt’s own statements during his treatment program since confinement, his actuarial risk assessment scores, and the expert opinion reflecting a combined analysis of antisocial personality disorder and paraphilia, the evidence was sufficient for jury to conclude beyond a reasonable doubt that Colt was a sexually violent predator subject to involuntary commitment under KSVPA. STATUTE: K.S.A. 59-29a01 et seq., -29a01(a), -29a01(b), -29a01(c), -29a02(a), -29a01(c), -29a06, 60-401(b), -407(f ), -455 MORTGAGES AND LICENSED SUPERVISED LENDERS INDEPENDENT FINANCIAL INC. V. WANNA ET AL. DOUGLAS DISTRICT COURT – AFFIRMED NO. 98,761 – MAY 23, 2008 FACTS: Wanna and Harjo took out a second mortgage on their home with Ditech Funding for $85,000. Countrywide Mortgage had the first mortgage. Wanna and Harjo defaulted on their payments to Ditech and Ditech assigned the note and mortgage to Independent Financial Inc. (IFI). IFI was not a supervised lender licensed by the state of Kansas. The IRS also filed a tax lien. Negotiations between the parties resulted in an agreement that IFI and the IRS would subordinate their respective loans if Wanna and Harjo THE JOURNAL OF THE KANSAS BAR ASSOCIATION
agreed to: (1) pay Countrywide in full; (2) pay IFI $36,000, plus $75 per month until the loan was paid in full; and (3) pay the IRS the balance of the available funds, which was believed to be $2,000. Wanna and Harjo signed a promissory note with Argent Mortgage Co. to obtain the funding for these agreements. Argent paid Countrywide in full and paid IFI $36,000 prior to obtaining or recording the necessary subordination agreements. Wanna and Harjo failed to make payments to IFI. The district court entered summary judgment in favor of Argent concluding that although the Ditech loan was not void, IFI, as an unlicensed assignee, violated K.S.A. 16a-2301(2). As such, the court held that IFI was prohibited from collecting on the loan and foreclosing on the mortgage. ISSUES: (1) Mortgages and (2) licensed supervised lenders HELD: Court stated that K.S.A. 16a-5-201 of the Kansas Uniform Commercial Credit Code applies only to consumers’ remedies for violations by creditors. Under 16a-1-301, an assignee of a loan is not a creditor; therefore, the penalty provision of K.S.A. 16a-5201(3), which allows a consumer to obtain a refund of twice the amount of any excess interest charged, is not an available consumer remedy against assignees. Court also stated that K.S.A. 16a-2-301(2) clearly and unambiguously requires an assignee of a supervised loan to be licensed as a supervised lender before taking an assignment or directly collecting on such a loan and provides a three-month grace period in which an unlicensed assignee may collect and enforce a loan if the assignee promptly applies for a license and has not had its application rejected. To permit an unlicensed lender to collect on a supervised loan absent such application would render the statute’s three-month grace period meaningless. Court held that to permit an unlicensed lender to collect on a supervised loan absent an application for a license would be contrary to the Legislature’s intent as it would deprive the state of the ability to police assignees that engage in the business of taking and collecting on assignments of supervised loans. STATUTE: K.S.A. 16a-1-101, -1-102(2), -1-301, -2-301, -2-302, -2-303, -5-201, 9-102 MORTGAGES AND TAX LIENS AMERICAN GENERAL FINANCIAL SERVICES V. CARTER ET AL. RENO DISTRICT COURT REVERSED AND REMANDED NO. 98,031 – MAY 16, 2008 FACTS: The Carters were deep in debt for failure to pay sales taxes to the Kansas Department of Revenue (KDOR). However, they were able to buy a home financed by American General Financial Services and later obtained a second mortgage. The Carters defaulted on the promissory notes to American. American foreclosed. The district court gave the KDOR’s initial sales tax lien priority over American’s purchase money mortgage. ISSUES: (1) Mortgages and (2) tax liens HELD: Court held there was no time when KDOR’s lien could attach to the property before the purchase money mortgage was created. KDOR’s, which is treated for collection purposes as a judgment, did not attach to the property until after the purchase money mortgage was created. STATUTES: K.S.A. 58-2305 and K.S.A. 2007 Supp. 79-3617 SALES AND CONTRACTS INTER-AMERICAS INS. CORP. V. IMAGING SOLUTIONS CO. SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 97,924 – JUNE 13, 2008 FACTS: Buyer (Inter-Americas Insurance Corp.) of computer hardware and software of document imaging system sued seller JULY/AUGUST 2008 – 49
(Image Solutions Co.) for damages for failing to timely perform. Seller denied any breach and counterclaimed that buyer never gave notice of any breach nor opportunity to cure any breach. District court held that the Uniform Commercial Code (UCC) applies, granted summary judgment to seller on buyer’s claim, and granted seller’s counterclaim. Buyer appealed. ISSUE: (1) UCC and (2) computer software HELD: Article 2 (Sales) of UCC applies in Kansas to transactions involving goods, and computer software programs are considered goods subject to UCC even though incidental services are provided with sale of software. Under facts of case, district court properly granted summary judgment to seller on buyer’s breach of contract claims. Contract had no deadlines, buyer had never complained of slow performance, and seller had done all it could do without buyer’s cooperation. Court also properly granted seller’s counterclaim for breach of contract, but improperly weighed evidence in granting summary judgment for damages. STATUTE: K.S.A. 84-1-204(2), -204(3), 84-2-102, -202(a), -309, -309(1), -508, -602(1) TAX APPEAL AND LOW INCOME HOUSING IN RE TAX APPEAL OF INTER-FAITH VILLA L.P. AND INTER-FAITH DEVELOPMENT CORP. KANSAS BOARD OF TAX APPEALS – AFFIRMED NO. 97,728 – JUNE 6, 2008 FACTS: Inter-Faith Villa owns and operates Villa Central in Sedgwick County. Villa Central contains 37 housing units, two office areas, a community room, a kitchen, and a laundry room for residents. Inter-Faith Ministries Wichita Inc., a tax-exempt Kansas not-for-profit corporation, is the general partner of Inter-Faith Villa and controls the operations of Villa Central. Eight of Villa Central’s housing units are for homeless people with chronic mental disabilities and the remaining 29 units are for people who need affordable housing. Inter-Faith Development Corp. owns and operates Villa North in Sedgwick County with a similar housing arrangement to Villa Central. Both Inter-Faith organizations filed for exemption from ad valorem taxes. The Sedgwick County Appraiser’s office did not request a hearing on the applications and recommended that both exemptions be granted. Board of Tax Appeals denied an exemption finding that both properties were not “used exclusively” for the exempt purpose of low income housing and that they did not receive financing from federal programs. ISSUES: (1) Tax appeal and (2) low income housing HELD: Court determined that because the subject properties were primarily low income housing facilities, K.S.A. 79-201b Fourth is the applicable exemption statute. Nevertheless, based on the plain meaning of K.S.A. 79-201b Fourth and the strict construction that must be given to exemption statutes, the appellants were not entitled to a statutory tax exemption due to their failure to meet the requirements of K.S.A. 79-201b Fourth. Moreover, the appellants do not fit within the charitable purposes exemption under Article 11, § 1(b)(2) of the Kansas Constitution because they have failed to show that the services they provided were “free of charge” or so “nearly free of charge as to make the charges nominal or negligible.” STATUTES: K.S.A. 77-621 and K.S.A. 79-101, -201 Second, -201 Ninth, -201b Fourth TERMINATION OF PARENTAL RIGHTS IN RE ADOPTION OF D.D.H. SEDGWICK DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS NO. 98,992 – JUNE 6, 2008 FACTS: Mother and Catholic Charities filed a petition to terminate 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
prior to and after D.D.H.’s birth, and it was in the child’s best interests for father’s rights to be terminated. Father objected. The district court declined to make a finding on the father’s parental fitness, but found the father’s parental rights should be terminated based solely on the best interests of the child standard. ISSUE: Termination of parental rights HELD: Court stated that the Kansas Adoption and Relinquishment Act is to be strictly construed in favor of maintaining the rights of natural parents. The Kansas Legislature intended to expressly permit courts, in weighing decisions whether to terminate parental rights, to consider the best interests of the child as a factor, but not as a stand-alone basis for terminating parental rights. Court remanded for the district court to address whether the father was unfit. STATUTE: K.S.A. 59-2111, -2136(e), (h) WORKERS’ COMPENSATION GASSWINT V. SUPERIOR INDUSTRIES INTERNATIONAL-KANSAS INC. WORKERS’ COMPENSATION BOARD – AFFIRMED NO. 97,518 – MOTION TO PUBLISH OPINION ORIGINALLY FILED FEBRUARY 8, 2008 FACTS: Gasswint worked at Superior Industries InternationalKansas Inc. (Superior), an aluminum wheel manufacturing plant in Pittsburg for 8.5 years. In 2000, Gasswint experienced two separate shoulder injuries that she reported to her supervisors. After these injuries, Gasswint continued to work at Superior. Gasswint requested and was granted a transfer to the machine shop. In the machine shop, Gasswint lifted aluminum wheels, weighing approximately 30 pounds each, from bins located at shoulder height and placed the wheels onto the line. After she began lifting the wheels, Gasswint experienced increasing pain in her shoulders. On March 19, 2004, Gasswint submitted a false mileage reimbursement request form to Tim Rakestraw, Superior’s safety supervisor, for her physical therapy travel costs. On April 29, 2004, Gasswint submitted another false mileage reimbursement request form to Rakestraw. Gasswint filed a workers’ compensation claim on Aug. 9, 2004. The administrative law judge (ALJ) noted that Gasswint suffered a single repetitive injury to both shoulders, a type of injury governed by K.S.A. 44-510e. The ALJ found that Gasswint had returned to work in an accommodated position and had earned an amount comparable to her preinjury average wage until she was terminated for cause from her employment. The ALJ concluded that Gasswint’s submission of erroneous mileage reimbursement forms did not amount to a lack of good faith in obtaining postinjury employment. A majority of the board agreed and determined that Gasswint was not entitled to recover for work disability because she had been terminated for cause due to misconduct. The board specifically found that Gasswint had failed to act in good faith when she submitted the second mileage request form. Accordingly, the board determined that Gasswint’s preinjury earnings at Superior should be imputed as her postinjury wage, which precluded her from recovering for work disability. ISSUE: Workers’ compensation HELD: Court held under the facts and circumstances of this worker’s compensation case, the board did not err in concluding that a worker could not recover for work disability when the employer had attempted to place the worker in an accommodated position and the worker’s loss of employment resulted solely from the worker’s own misconduct. STATUTE: K.S.A. 44-510e
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WRONGFUL DEATH AND STATUTE OF LIMITATIONS BONURA ET AL. V. SIFERS ET AL. JOHNSON DISTRICT COURT – AFFIRMED NO. 97,057 – MAY 2, 2008 FACTS: In November 2000, Bonura consulted with Sifers for a new weight loss surgical procedure called a “duodenal switch” alternatively known as “biliopancreatic diversion with duodenal switch.” On Jan. 15, 2001, Bonura signed a consent form for a “duodenal switch,” the operation scheduled was a “duodenal switch,” but Sifers in his post-operative summary indicated he performed a “bilipancreatic [sic] diversion.” Bonura developed severe complications, was in intensive care for eight days, and died on Jan. 26, 2001. The death certificate listed pulmonary embolism resulting from morbid obesity as the cause of death. The Bonura family obtained Bonura’s medical records, and there is evidence they contacted an attorney within a few months of Bonura’s death. Three years after Bonura’s death, a Kansas City newspaper reported on Bonura’s weight loss surgery and how other patients of Sifers had not received the duodenal switch procedure they had requested. On Nov. 1, 2004, the plaintiffs filed their first petition for medical malpractice and by this time, Sifers had died and his estate was substituted. The district court granted summary judgment to the defendants finding the statute of limitations had run on all claims related to Bonura’s death because they were reasonably ascertainable when Bonura had died. ISSUES: (1) Wrongful death and (2) statute of limitations HELD: Court held that Sifers’ claimed misconduct could have been determined from the medical records existing when Bonura died. Plaintiffs do not allege that Bonura’s medical records were in any way concealed or falsified by medical personnel after his death. Court stated it would have been reasonable for plaintiffs to have consulted other medical or legal personnel to investigate the cause of his death, particularly when the death certificate showed that decedent had died from a risk that the doctor had earlier minimized when discussing the surgical procedure to be performed. Court concluded that a reasonable investigation into Bonura’s death would have revealed the claimed wrongful conduct of Sifers within the two-year limitations period for wrongful death, for medical malpractice, and for fraud. The statute of limitations also ran on the claim for battery and for violations of the Kansas Consumer Protection Act. Court found the district court did not err in refusing to apply the doctrine of equitable estoppel. STATUTES: K.S.A. 50-623 et seq.; and K.S.A. 60-512(2), -513(a)(4)(c), (a)(5), -1801, -1901
Criminal STATE V. BALE RENO DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, AND REMANDED NO. 96,929 – MAY 16, 2008 FACTS: Bale convicted of involuntary manslaughter for running over her son, Casey. On appeal, Bale claimed district court failed to instruct jury that state must establish that her conduct was proximate cause of Casey’s death, and that Casey’s conduct was not an intervening cause. She claimed her confession to a detective a week later should have been suppressed because she was not first advised of Miranda rights. She claimed the journal entry ordering reimbursement of Board of Indigents’ Defense Services (BIDS) attorney fees and for BIDS application fee should be corrected because these were not included in the district court’s oral pronouncement of sentence. ISSUES: (1) Jury instruction, (2) motion to suppress, and (3) BIDS fees HELD: No error in not giving separate proximate cause instruction. Instructions on elements of the crime adequately expressed THE JOURNAL OF THE KANSAS BAR ASSOCIATION
proximate cause requirement, and no evidence warranted an instruction on intervening cause. Facts in State v. Collins, 36 Kan. App. 2d 367 (2006), are discussed and distinguished. No error in denying Bale’s motion to suppress. Under facts of case, Bale was not under arrest, and a reasonable person would not perceive that she was in custody. K.S.A. 22-4513 is a recoupment statute. Consequently, imposition of BIDS fees is not part of a defendant’s punishment for a crime and is therefore not part of the defendant’s sentence. Because district court did not consider Bale’s ability to pay the BIDS attorney fees, that order is vacated and remanded for proceedings consistent with State v. Robinson, 281 Kan. 538. STATUTES: K.S.A. 2007 Supp. 8-1001, -1567; and K.S.A. 213142, 22-3414(3), -4513, -4529 STATE V. BARNEY SHAWNEE DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 96,497 – OCTOBER 5, 2007 PUBLISHED MAY 6, 2008 FACTS: Barney convicted and sentenced for aggravated burglary, burglary, theft, and criminal damage to property. On appeal he claimed (1) district court erred in admitting evidence of police dispatch statement resulting from anonymous caller reporting suspicious behavior in neighborhood, (2) insufficient evidence supported his convictions, (3) error in order for reimbursement of Board of Indigents’ Defense Services (BIDS) attorney fees, and (4) sentence improperly based on criminal history not proven to jury. ISSUES: (1) Police dispatch statement, (2) sufficiency of evidence, (3) BIDS reimbursement, and (4) sentencing HELD: Police dispatch cases reviewed. Evidence in this case was not inadmissible hearsay and did not violate Confrontation Clause. Anonymous caller did not identify Barney by name or establish guilt of any crime. District court properly found testimony regarding police dispatch statement was not offered to prove truth of the matter asserted, but only to explain officers’ actions after receiving the dispatch and to explain how officers initially approached Barney as a suspect. Even if error, it was harmless under facts and circumstances of case. Sufficient evidence supported all of Barney’s convictions. State concedes the district court failed to inquire into Barney’s financial ability to reimburse BIDS attorney fees. That part of Barney’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 criminal 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. 22-4513, 60-407(f ) STATE V. COTT SHAWNEE DISTRICT COURT – REVERSED AND REMANDED WITH INSTRUCTIONS NO. 97,955 – JUNE 27, 2008 FACTS: Cott was stopped for Driving Under the Influnce (DUI) with her four-year-old son in the car. Cott pled no contest to DUI, no liability insurance, failure to maintain a single lane, and no seat belt. She was allowed to withdraw the plea, but in response, the state dismissed the case and refiled it, adding a count of aggravated endangerment of a child and a count of following too closely. The trial court dismissed the aggravated endangering charge because the DUI statute was more specific. ISSUES: (1) DUI and (2) aggravated endangerment of a child.
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HELD: Court held that K.S.A. 2005 Supp. 8-1567(h) and K.S.A. 2005 Supp. 21-3608a are construed and ruled to be compatible; choosing which statute to charge is a matter of prosecutorial discretion. STATUTES: K.S.A. 2005 Supp. 8-1567(h) and K.S.A. 2005 Supp. 21-3608a STATE V. CRAWFORD ATCHISON DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, AND REMANDED NO. 98,312 – JUNE 13, 2008 FACTS: Crawford convicted of burglary and theft while on probation for juvenile adjudications. Sentencing court ordered presumptive probation for each offense to run consecutive to each other, and consecutive to the juvenile sanction. Crawford appealed. ISSUES: (1) Consecutive sentencing and (2) juvenile adjudications HELD: Issue of first impression in Kansas. Court’s power to impose consecutive sentences flows from statutory authority. Based on Legislature’s exclusion of specific language listing juvenile adjudications, it meant to exclude juvenile adjudications from cases calling for consecutive adult sentences. Illegal sentence in this case is vacated and remanded for resentencing. 2007 amendment to K.S.A. 38-2376(a) is noted. Also, state concedes remand is required for compliance with State v. Robinson, 281 Kan.538 (2006), and district court did not err in using Crawford’s prior juvenile adjudications to calculate criminal history. STATUTES: K.S.A. 2007 Supp. 38-2376(a); K.S.A. 2006 Supp. 21-4603d(f ), 38-237(a); K.S.A. 21-402(c), -4608, -4720(b), 22-3504, -3504(1); K.S.A. 21-4603d(f )(1) (Torrence); K.S.A. 21-4603d(a) (Furse); and K.S.A. 1993 Supp. 213701 STATE V. GORE SEDGWICK DISTRICT COURT – REVERSED NO. 97,380 – JUNE 6, 2008 FACTS: Gore convicted of aggravated sodomy. Prior to trial, district court denied Gore’s motion to dismiss charges for violation of speedy trial statute, and attributed a disputed 56-day continuance to the defense. Gore appealed on speedy trial claim. ISSUE: Speedy trial HELD: Detailed examination of reasons given by trial court for attributing the disputed continuance to the defense, finding them inadequate to show the delay was caused by Gore. Under facts of case, Gore was not brought to trail within 180 days of his arraignment. Gore’s conviction is reversed, sentence is vacated, and charges are dismissed. STATUTE: K.S.A. 22-3402, -3402(2)
STATE V. GROSS SEDGWICK DISTRICT COURT REVERSED AND REMANDED NO. 97,444 – JUNE 6, 2008 FACTS: After police questioned the nervous driver (Stroot) of an illegally parked car, they proceeded to question passenger (Gross). Gross arrested and convicted of possession of cocaine. District court denied Gross’ motion to suppress, finding officers were entitled to briefly detain Stroot to discuss parking violation, and burnt smell of marijuana, Stroot’s nervousness, initial inconsistencies in statements about friend Stroot and Gross were to be visiting, and their later admission of lying provided articulable suspicion that car might contain marijuana. District court also found police officers were justified in their arrest and pat-down search of Gross. On appeal, Gross claimed trial court erred in finding there was reasonable suspicion to support her detention. She also claimed officer’s direction that Gross take items from her private area constituted a body cavity search that was unlawfully conducted without warrant. ISSUES: (1) Motion to suppress and (2) body cavity search HELD: Trial court correctly determined that officers’ initial encounter with Gross was an investigative detention rather than a voluntary encounter. Under facts of case, however, detention of Gross exceeded the scope of any stop or detention of the driver for a parking violation. Because officers did not have reasonable suspicion that Gross was involved in criminal activity to justify her detention, evidence obtained during the course of her unlawful detention and resulting search must be suppressed. Conviction is reversed and remanded for new trial without evidence obtained during the unlawful detention, including evidence seized in search of car and Gross. Body cavity search issue is moot. STATUTE: K.S.A. 8-1567, -2116(a), -211(a)(1), -2118, 124211(d), 21-3105, 22-2402(1), -2520, -2522 STATE V. MCCADDON SALINE DISTRICT COURT REVERSED AND REMANDED NO. 96,051 – JUNE 13, 2008 FACTS: Anonymous caller reported domestic disturbance, with man leaving house for hospital. Police stopped car matching caller’s description that resulted in arrest of driver (McCaddon) for DUI, no proof of insurance, and driving on a suspended license. District court found the officer did not have a reasonable suspicion to stop McCaddon for any criminal activity, but denied motion to suppress because stop was justified to check on driver’s welfare. McCaddon appealed. ISSUE: Public safety stop HELD: Under facts, this was not a valid safety stop. State v. Tucker, 19 Kan. App. 2d 920, rev. denied 255 Kan. 1007 (1994), is discussed and distinguished. Reversed and remanded to grant motion to suppress. DISSENT: (Pierron, J.): Officer correctly initiated stop to clear up fuzzy but possibly dangerous situation. Officer’s actions were reasonable 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 statement 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.
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ISSUE: BIDS fees HELD: Court held that where a defendant has agreed as a part of an otherwise valid plea agreement to pay a specific portion of BIDS attorney fees, the sentencing judge may forego the statutory procedure normally required by Robinson, and order such reimbursement in the journal entry of sentencing. STATUTE: K.S.A. 22-4513(b) STATE V. PRITCHARD RENO DISTRICT COURT – AFFIRMED IN PART AND REVERSED IN PART NO. 97,165 – MAY 30, 2008 FACTS: Pritchard convicted on numerous drug charges. On appeal, he claimed the district court erred in denying Pritchard’s motion to suppress evidence discovered in search of Pritchard’s campsite claiming search warrant affidavit failed to set forth facts to support a finding of probable cause that Pritchard and others were manufacturing methamphetamine. Pritchard also claimed two of his drug possession charges were multiplicitous. ISSUES: (1) Probable cause for search warrant and (2) multiplicity HELD: Under facts of case, information from various law enforcement officers corroborated information obtained from a confidential informant. All was used to support a finding of probable cause that was sufficient to justify the issuance of a search warrant. Under facts of case, Pritchard’s convictions for possession of drug paraphernalia with intent to manufacture a controlled substance and possession of drug paraphernalia with intent to use to package a controlled substance for sale are multiplicitous because they arose from the same conduct and one unit of prosecution, and Pritchard could only be convicted on one of those counts. STATUTES: K.S.A. 2007 Supp. 65-4101(n); and K.S.A. 214705(a), 65-4152, -4152(a)(3), 65-7006
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STATE V. RUTHERFORD ANDERSON DISTRICT COURT – AFFIRMED NO. 96,878 – JUNE 6, 2008 FACTS: Rutherford was convicted of aggravated criminal sodomy and aggravated indecent liberties with a child based on contact he had with the daughter (C.R.) of his girlfriend (B.R.). C.R. has development delays and functions at a level similar to a child who is 2 years old or younger. Rutherford admitted to some conduct that may have been in appropriate and that he could possibly have hurt C.R. when he gave her baths. ISSUES: (1) Probable cause, (2) sufficiency of the evidence, and (3) departure sentencing HELD: Court rejected Rutherford’s argument that the state’s case at the preliminary hearing was inappropriately based on his prior conviction and his status as a registered sex offender. Court ultimately concluded that even if the prior conviction and the sex offender registration were the only evidence presented at the preliminary hearing to support a finding of probable cause, the district judge’s subsequent decision to prohibit such evidence at trial precluded any finding of prejudice. Court held it was unlikely the jury would have returned a different verdict with an instruction defining “lewd” and there was sufficient evidence to support the jury’s rational belief that Rutherford engaged in lewd fondling or touching done with the intent to arouse or to satisfy sexual desires. Court held that even if the district court erred in granting a departure based on the vulnerable age of the victim because it was already an element of the crime, it was not reversible error because the court based it’s departure on two other factors not challenged by Rutherford. STATUTES: K.S.A. 21-3503, -3504, 3506, -4721(d) and K.S.A. 22-3208, -3414
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Classified Advertisements Positions Available THE KANSAS RURAL COMMUNITIES FOUNDATION (KRCF) is seeking attorneys who specialize in charitable and estate planning who would like to be included in our free statewide client referral service. Established in 2006, the KRCF is a 501(c)(3) nonprofit charitable corporation that works with benefactors throughout Kansas to create funds and make gifts that benefit their communities. If you would like to be included in the KRCF client referral service, please contact René Eichem, executive director, at (785) 456-8444 or krcf@wamego. net or Jeff Elder, Elder Law Office, at (785) 456-8414 or elder_pa@hotmail.com. For more information about the KRCF, visit www.thekrcf.org. THE KANSAS LEGISLATIVE COORDINATING COUNCIL is seeking legislative counsel. A copy of the RFP is available on request at Revisor’sOffice@rs.state.ks.us or at Office of Revisor of Statutes, Attn: Joan Scott, Statehouse, 010-E, 300 S.W. 10th, Topeka, KS 66612.
Attorney Services PARALEGAL SERVICES Smith Legal & Consulting Services Inc., Sheila C. Smith, P.O. Box 12252, Overland Park, KS 66282-2252. Cell: (913) 713-9332 Fax: (205) 449-0285. ANDERSON ECONOMIC GROUP Experts in economics, finance, and statistics for matters of commercial damages, business and asset valuation, lost earnings or profits, anti-trust, taxation, buy/sell agreements, fairness opinions, securities, trusts, and estates. Also provide economic and market feasibility studies. Industry expertise includes alcoholic beverages, automotive, franchises, manufacturing, oil and gas, real estate, rental car, retail, and telecommunications. Offices in Oklahoma, Texas, Illinois, and Michigan. Contact Patrick Fitzgerald, Ph.D., J.D., at (405) 360-4040 or visit www.andersoneconomicgroup.com. MCNABB, PURSLEY & KINNEY LLC Our firm is located in Butler, Mo., near Linn and Bourbon counties in Kansas and Bates, Cass, and Vernon counties in Missouri. Our firm specializes in creditor’s rights, including bankruptcy, real 54 – JULY/AUGUST 2008
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estate, title insurance, probate and estate planning, general business services, and banking law. We practice in Missouri and Kansas state courts and in the federal courts in Kansas and both districts of Missouri. We welcome co-counsel appointments. Call Brandon Kinney at (660) 679-4153 or e-mail at kinney-mpklaw@sbcglobal.net.
OFFICES FOR RENT. Law officers located in downtown Overland Park, in remodeled historic building, free parking, reception area, kitchen, conference room, fax, scanner, copier, phones, voice mail, and high-speed Internet access. The offices are in walking distance of coffee shops, restaurants, and retail stores. Fourteen highly respected attorneys in an office-sharing/networking arrangement. Contact Jim Shetlar at (913) 648-3220.
TIRED OF LONG LINES AT THE LAW LIBRARY? Or wondering how to write the appellate brief due next Monday? Or just too busy with trial work? Visit www.my learnedhand.com to see how fellow KBA member Arti Rolfingsmeier can help with your research and writing projects. Rates very reasonable. Testimonials also available on-site. Call Arti Rolfingsmeier at (913) 3428815 or e-mail at arolfingsmeier@sbcglobal. net.
For Sale THE LAWBOOK EXCHANGE LTD. buys, sells, and appraises all major lawbook sets. Also antiquarian, scholarly. Reprints of legal classics. Catalogues issued in print and online. Mastercard, Visa, and AmEx. (800) 422-6686; fax: (732) 382-1887; www.lawbookexchange.com.
PROFESSIONAL OFFICES available in newly remodeled office building. Seeking attorneys to occupy three offices on main floor. Access to reception area, conference room. Office size 12’ x10’. The offices are $600, utilities included. Wireless Internet provided. Additional services available through resident tech firm. Private off street parking for you and clients. Great central location. Referrals available. Call (913) 7060878 and ask for Rachel. Feel free to stop by and look. 7001 W. 79th St., Overland Park, Kan.
RARE-FULL SET: Kansas Supreme Court Reports. Hard Volumes 1-280 and Advance Sheets (to date) through volume 283. Mint condition. These regularly list for $7,838 without the rare out of print hardbound early reports. We are selling them for $7,000. FULL SET: Kansas Court of Appeals Reports Hard Volumes 1-33 and advance sheets (to date) through volume 37. Retail $1,219 – For sale $800. Contact Christy at (316) 265-1688. WEST BANKRUPTCY REPORTERS Hardbound, Volumes 1-342 plus advance sheets volumes 339-346. $1,500 Contact Christy at (316) 265-1688. KANSAS REPORTS complete from Vol. 1 through Vol. 261, and subsequent advance sheets. Vols. 1 to 74 in rough shape. KA2d from Vol. 1 to 22 and subsequent advance sheets. $750 or best offer. Phone (316) 2652834.
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
KBA Continuing Legal Education: Your Partner in Practice! For more information, or to register online, visit www.ksbar.org. These KBA CLE seminars are being submitted for accreditation to the Kansas CLE Commission. Potential walk-in participants should call the KBA office at (785) 234-5696 prior to the seminar to check for possible schedule changes. For updates on CLE credit approval, visit www.ksbar.org/public/cle.shtml. To access your Kansas CLE transcript online, visit www.kscle.org/Tran_Query.aspx.