May 2017 Journal

Your Partner in the Profession | May 2017 • Vol. 86 • No. 5

The Kansas Judicial Review Act: A Road Map

by Michael S. Obermeier P24

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24 | The Kansas Judicial Review Act:

A Road Map

By Michael S. Obermeier

Cover design by Ryan Purcell Centerpiece by Amanda Kohlman

21 | Bruce Hopkins' Excellent Adventure SJD - What's the Point of Three (Law Degrees)?

By Patti Van Slyke 34 | 2017 Annual Meeting -- See Insert!

48 | Upcoming CLE Schedule 49 | On the Christian Origins of American Legal Ethics....M.H. Hoeflich

45 | How to be a More Engaged Section Member....Sara Rust-Martin

Regular Features 6 | KBA President

Farewell, with Thanks....By Steve Six

7 | A Nostalgic Touch of Humor

Where No Trump is not political commentary

By Matt Keenan

14 | Law Practice Management Tips & Tricks Young Readers Prefer Paper

By Larry N. Zimmerman 15 | YLS President

Locker Room Talk....By Nathan P. Eberline

40 | Members in the News 41 | Obituaries 56 | Appellate Decisions 61 | Appellate Practice Reminders What's in a Font (a/k/a "What the Font!")

By Douglas T. Shima 66 | Classified Advertisements

19 | The Diversity Corner Sex Trafficking and You....By Meredith Hogan

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THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION 2016-17

Journal Board of Editors

President Stephen N. Six, ssix@ksbar.org President-elect Greg Goheen, ggoheen@mvplaw.com Vice President Bruce W. Kent, bruce.w.kent@gmail.com

Emily Grant, chair, emily.grant@washburn.edu Terri Savely, BOG liaison, tsavely@ksbar.org Sarah G. Briley, sbriley@morrislaing.com Hon. David E. Bruns, brunsd@kscourts.org Richard L. Budden, rbudden@sjblaw.com Boyd A. Byers, bbyers@foulston.com Jennifer Cocking, JCocking@capfed.com Connie S. Hamilton, jimandconniehamilton@gmail.com Michael T. Jilka, mjilka@jilkalaw.com Lisa R. Jones, ljones@fgcu.edu Hon. Janice Miller Karlin, judge_karlin@ksb.uscourts.gov Casey R. Law, claw@bwisecounsel.com Hon. Robert E. Nugent, judge_nugent@ksb.uscourts.gov Professor John C. Peck, jpeck@ku.edu Rachael K. Pirner, rkpirner@twgfirm.com Richard D. Ralls, rallslaw@turnkeymail.com Karen Renwick, krenwick@wbsvlaw.com Teresa M. Schreffler, tschreffler@gmail.com Richard H. Seaton Sr., seatonlaw@sbcglobal.com Sarah B. Shattuck, bootes@ucom.net Richard D. Smith, rich.smith@ag.ks.gov Marty M. Snyder, marty.snyder@ag.ks.gov Patti Van Slyke, journal editor, pvanslyke@ksbar.org Catherine A. Walter, cwalter@topeka.org Meg Wickham, staff liaison, mwickham@ksbar.org Issaku Yamaashi, iyamaashi@foulston.com Natalie Yoza, yozan@kscourts.org

Secretary-Treasurer Mira Mdivani, mmdivani@uslegalimmigration.com

The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Patti Van Slyke, Journal Editor at pvanslyke@ksbar.org.

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The Journal of the Kansas Bar Association (ISSN 0022-8486) 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 is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; 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.

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Let your VOICE be 2016-17 Heard!

KBA Officers & Board of Governors

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Immediate Past President Natalie G. Haag, nhaag@capfed.com Young Lawyers Section President Nathan Eberline eberline@kansascounties.org District 1 Mark A. Dupree, mark.lawdupree@gmail.com Toby J. Crouse, tcrouse@foulston.com Christi L. Bright, christi@thebrightfamilylawcenter.com Diana Toman, tomand@compassminerals.com District 2 Sarah E. Warner, sarah.warner@trqlaw.com Hon. Sally D. Pokorny, spokorny@douglas-county.com District 3 Eric L. Rosenblad, rosenblade@klsinc.org District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Cheryl L. Whelan, cheryl.whelan@ag.ks.gov Terri Savely, bezekt@kscourts.org Vincent Cox, vcox@cavlem.com District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Sylvia Penner, spenner@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org District 8 John B. Swearer, jbs@martindell-law.com

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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.

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kbaKansas president The Judicial Review Act

Farewell with thanks....

I

t is hard to believe a year has passed, and I am handing the reins of the KBA over to Greg Goheen. The KBA is in excellent hands with Greg, and I thank him for his support over the past year. I also wanted to take this opportunity to thank all the members of the Kansas Bar Association Board of Governors. The Board has worked hard, contributed, and volunteered countless hours to improve the practice of law in Kansas. Many of the issues before the Board were challenging, but each matter was handled with respect and grace. I learned so much from our KBA Board members.

I would also like to thank the KBA staff. The KBA has a terrific staff who are devoted to the lawyers of our organization.

Their talents and work have been very much appreciated.

Finally, I would like to thank the executive committee; working together with all of you made it all go smoothly.

So thanks to Greg Goheen, Mira Mdvani, Nathan Eberline, Bruce Kent, Natalie Haag, Sarah Warner, and John Swearer. n

Outgoing KBA President Steve Six will now be able to get back to his other passions—his job, his family, hiking, skiing and hunting!

About the KBA President Steve Six is a partner at Stueve Siegel Hanson in Kansas City, Mo. He specializes in complex litigation, focusing on class actions and commercial litigation. ssix@ksbar.org

2017 Health Law Update

9:00 a.m. to 3:30 p.m. • Friday, May 12, 2017 Hyatt Place Kansas City/Lenexa City Center 8741 Rycert Street

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The Journal of the Kansas Bar Association

Thea Kansas Judicial Act nostalgic touch Review of humor

Where No Trump is not political commentary

I

q Do you watch the E Network, Bravo, or that channel that replays Cops over and over again? Yes/No

q Do you own a selfie stick? Yes/No

q Have you ever taken a selfie, while driving, and puckered up your lips while weaving across the center line?

Yes/No

begin this month's column with a quiz:

is about to turn 92. He still arrives at Hampton & Royce in Salina when he’s not doing other things like traveling the world. But C. Stanley was a world class bridge player back in the day. In fact, he and his partner were the Big Six Bridge champions back in June 1947. The Big Six predated the Big 8, which predated the Big 12. The K Union newspaper— described as the “Official Bulletin of the Kansas Memorial Union”—described his victory this way: “Though the shining trophies and plaques have not yet arrived, Stan Nelson and

If you answered "No" to these three questions, this column is for you.

You see, this months’ column is about Bridge. The card game.

Bridge is making a comeback, and my wife and I jumped on board two years ago taking beginner lessons at the Bridge Studio at 95th and Metcalf. Since then, we’ve joined groups playing the game in Silverthorne, Colorado, south Overland Park, and Tuesday at the Bridge Studio. You may think it’s a game played by adults who drive around with their blinkers on.

Yes, that’s true. However, consider for a moment that scientific studies demonstrate that playing bridge keeps you mentally sharp and can ward off dementia.

I don’t need scientists to tell me this.

I know living proof of this truism. Ever heard of C. Stanley Nelson? C. Stanley is an iconic presence of the Kansas Bar who

www.ksbar.org | May 2017 7

a nostalgic touch of humor

From the Sunday, March 12, 2017 NABC Daily Bulletin

Dean Gibson are the winners of the coveted Big Six bridge tourney held at the University of Nebraska."

Yes, KU beat K-State. So live longer, stay smarter and kick the butts of those guys who wear purple!

Any questions?

But wait, there is more. The people who play bridge are interesting. They have substance. They are real. They don’t know anything about the E channel, or the Kardashians, Kanye or Tyga (he’s a ‘musician.’)

These are your kind of people.

Some people think of card games and think of poker. I know, for a while poker was red hot. It even had its own television shows aired opposite programming like the Super Bowl or the Final Four. Poker tournaments highlight players who last saw daylight when Nixon was President. They sport baseball hats advertising web sites that probably get blocked by your firm’s security software. And one person wins millions and the rest of the world gets poorer. No thanks.

Bridge on the other hand attracts a different breed. For example, the National Bridge tournament was held in Kansas City in March at the Sheraton and Westin in Crown Center.

Lori and I were playing in the beginner section. It was Sunday, March 12th. We were at a break and everyone was minding their own business.

And as I turned to grab a paper cup at the coffee station on the third floor of the hotel, to my side walked a man, and I glanced over at him. I recognized him in an instant. It was Bill Gates. He was dressed in a sports pullover with a zipper top. He was wearing jeans, and his shoes, which I noticed, 8

The Journal of the Kansas Bar Association

were loafers that showed considerable wear and tear. An accomplished bridge player, he was there competing along with people from all around the world.

Yes, this was somewhat shocking. But what happened next was even more jaw dropping. The world’s richest man walked around the atrium, tended to his business and everyone there—and there were thousands present—minded their own business as well. No one even extended their hand to say something like “Hi there, Bill. Got any spare change?”

Had this been any place other than a bridge tournament, the poor man, so to speak, would have been attacked by Gen X’ers consumed with the inconsequential.

Turns out Gates and his bridge partner won a competition called the 10K Swiss which was some kind of doubles competition. Two days later the KC Star ran a story about Gates being in town competing, but I suspect he had already collected his trophy and departed.

So if you play the game, or take it up, and while playing at a tournament happen to see someone famous, please treat me like a regular person. n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com

We

! e t a D e Save th

7 e n u J • y a d s e dn

at the beautiful

Manhattan Country Club 9:00 a.m. Driving range and putting greens open for practice!

10:00 a.m. Tournament begins!

Proceeds will benefit: The Boys and Girls Club of Manhattan The Sunflower CASA Project Interested in Sponsoring Opportunities? contact Anne Woods: awoods@ksbar.org or 785-861-8838

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Hope to see you June 8th at...

KBA Awards & Installation Luncheon 11:30 a.m. - 1 p.m.

Hilton Garden Inn & Manhattan Conference Center

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Need a Last Minute CLE? Programming available • Webinars • Replays • Live Check the KBA CLE calendar at

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13

law practice management tips & tricks

Young Readers Prefer Paper

V. T

here was a vague sense within many professional circles that children raised with digital technology would grow up preferring digital tools to analog. Flipping user preferences from reading paper books to eBooks on screen, for example, was simply a matter of nurture. Theoretically, children raised in an eBook-rich culture would ultimately favor them as adults. Early results suggest that did not (or has not) happened yet.

A 2015 Scholastic Kids and Family Reading report notes that 65 percent of children ages 6 to 17 agreed they would always want to read in print. And 77 percent of those surveyed who had tried e-reading said most of their reading was still print.

College-aged readers are even more favorable to print materials versus digital texts. In her book, “Words Onscreen: The Fate of Reading in a Digital World,” linguist Naomi Baron polled 300 college students from three continents—including the U.S.—about their reading preferences. Physical books were preferred by 92 percent of the students. Students panned reading on digital platforms as too distracting and lacking non-textual information important to readers (e.g. how far into a book the reader is). Even the scent of physical books played a role in some students’ preference for paper texts with some studies showing as many as 11 percent of readers significantly value the smell of a book.

Paper Puts up a Fight Finding anything more than anecdotal evidence of digital versus analog reading preferences for older readers is more difficult. Very few older readers are digital-only readers, falling in at 6 percent of 18- to 29-year-olds, 7 percent of 30- to 49-year-olds, and 5 percent of those 50 and older. By contrast, only 3 percent of those who have not graduated from high school consume books in digital-only formats. These figures, however, are simply usage research and do not illuminate actual preferences for format, setting aside consumer habits related to cost, availability, convenience, etc.

Additional market data suggests that eBook readership in general is in decline. The first drop occurred in 2015 over 2014 numbers when sales at major publishers dropped by about 11 percent. Things did not improve in 2016 with another decline in sales of about 18 percent. Those sales drops came even though widespread adoption of eBook readers, tablets, laptops, and smartphones all provided ample platforms for consumers to transition from paper. Many publishing experts attribute the decline to “digital fatigue”—users wanting escape from electronics—rather than any industry defects in pricing or availability. It may even be a temporary speed bump in eBook growth.

Paper Preference Likely Long-Term Is any of this data relevant to lawyers? Potentially, yes. The profession has undertaken a multigenerational effort to move from paper to digital. Law libraries migrated from books to CD-ROMS and then online services and now the courts themselves are moving toward fully digital platforms as well.

While cost and efficiency were primary drivers of the profession’s move from paper to digital, there was a usually silent assumption about the migration. Specifically, that the “old fogeys” with their preference for paper would need to step aside to clear a path for the digital natives raised on eBooks.

It allowed transition to digital to have some hint of altruism toward the future to undergird the more pronounced financial motives.

The data may suggest there is no true generational divide between those young kids raised on iPads and old lawyers who remember drinking with Gutenberg. Facility with technology does not seem to necessarily imply a preference for it – at least not where reading is involved. We may still be a generation or more away from a time when lawyers prefer digital text over paper rather than simply enduring the change. It is probably not a quantifiable problem but becomes another potential accretion of “not fun” stuff lawyers can expect when entering the profession. Another small thing endured as a lawyer instead Cont'd on Pg. 17

14 The Journal of the Kansas Bar Association

yls president

Locker Room Talk

A

few weeks ago after a workout, two friends asked me about the state of the statehouse and what we might expect during the remainder of the legislative session.

The conversation turned into a discussion on politics and governance with a touch of political philosophy thrown in for good measure. As I returned to the office, it struck me how uncommon the subject matter is for casual conversation.

Most people adopt the adage that “polite company does not discuss politics or religion.” Though Emily Post, the longtime authority on etiquette, did not adopt such a strict standard, she did give some thoughtful advice on approaching conversation in her 1922 book, Etiquette. Post begins with the more elementary adage that good conversationalists think before they speak. Here, she veers closer to the no-politics-or-religion rule: “The tactful person keeps his prejudices to himself and… [i]f he finds another’s opinion utterly opposed to his own, he switches to another subject for a pleasanter channel of conversation.”

Post continued in her chapter on conversation by reminding that “[p]reaching is all very well in a text-book, schoolroom or pulpit, but it has no place in society.” Putting these etiquette rules together serves as a solid argument to indeed avoid discussion of politics and religion when out in society.

But I fear taking this stance leaves us ill-equipped to discuss matters of worth.

The legal profession has a well-earned reputation for valuing reason. Many have focused on the intimacy between the law and reason—from Aristotle, to Milton, to Sir Edward Coke, to Kansan William Allen White —the law represents our attempt to capture the rules that govern our collective conduct.

Our legal training instills logic and a capacity to work through complex matters point by point. This training serves us well in the law, but it also serves us well in other areas.

Training in the law does not necessarily translate to talents in politics or religion. But the training sharpens our tools to study and analyze. It accords a capacity to ask thoughtful questions and listen well to the response. This is the best way to address areas of passion and prejudice—the areas that matter most.

The modern political climate suggests a widening divide where opposing sides prompt feelings of fear, anger, and frustration. Mere arguments are unlikely to simply win over opponents or eliminate the distrust toward people of opposing views. Such arguments may even have the opposite effect. But this is where leadership comes into play.

Michael Hyatt, former Chairman and CEO of Thomas Nelson Publishers, recently wrote about the tendency to confuse leadership and control. Hyatt emphasized that expanding influence takes more than just being in charge. Words and conduct must be in place before we can wield influence.

This means looking thoughtfully at who is in our circle of influence and seeing where we might engage and use the tools of our trade to lead discussions that matter. The law strengthens our ability to see the value in opposing arguments—ideally viewing those arguments without inflamed passion—which better enables us to extend this reason-based approach to those around us. This does not mean challenging via Facebook post the opinions of an acquaintance from high school that you haven’t spoken to since graduation. But it might mean offering questions or comments to a friend or colleague who might be interested in following your lead.

If there is to be meaningful discussion about subjects of heft, it will require mindfulness and empathy to communicate effectively. Whether the setting is a happy hour, a dinner party, or even social media, influence will more successfully transpire through the give and take of thoughtful discussion.

You cannot will or argue someone into submission, but combining lawyering with a dose of etiquette may help close the societal divide.

As I drafted this column, I thought about the locker-room conversation that prompted my writing and what it would take for my daughters to express their own ideas with not only confidence and accuracy but also grace and humility. It led me back to a reprinted book that my mom gave my girls entitled How to Behave and Why. The author, Munro Leaf, may be just as anachronistic as Emily Post, but her advice on wisdom is still quite timely. She offered that we make good friends “[b] y never acting as though we were the only people in the world who counted, and never acting fresh and showing off to make people believe that we think we are better than they are.” Leaf added: “’I can’t always be right no matter who I am’ is a good thing for all of us to remember.”

A children’s book, an etiquette column, and a law degree may be an odd template for substantive civility. Yet this may reflect Michael Hyatt’s point that it takes the smaller areas of influence to make a difference. It may be easiest to keep the chatter in the locker room restricted to sports and the weather, as well it often should be. But when the right occasion arises— with your purposeful forethought, reason and influence—you are positioned perfectly to engage in meaningful conversation that would receive even Emily Post’s seal of approval. n Cont'd on Pg. 17 www.ksbar.org | May 2017 15

CLIFFORD A. COHEN Attorney at Law

Public and Private School Cases Public Employee Due Process Claims Federal and State Court 35 Years Experience (913) 345-2555 Fax (913) 345-2557 e-mail: cac@ksmolaw.com

COLANTUONO BJERG GUINN LLC (Of Counsel) 7015 College Blvd. #375 Overland Park, Kansas 66211

Licensed in Kansas, Missouri and Colorado

16

The Journal of the Kansas Bar Association

yls president Cont'd from Pg. 14

Cont'd from Pg. 15

of an enjoyment potentially gained from the practice. When the “not fun” column in a profession’s spreadsheet fills up too much at the expense of the enjoyments, the profession ultimately changes as does the type of people it attracts. Those shifts are interesting in the long view.

There is a counter argument proposed, however. While many of the studies examine reader preferences of children as young as six, evidence extrinsic to those studies reveal there are not very many true digital native children yet. There is still a preference in the market for paper books for children which is to be expected, considering that their parents prefer paper.

Those will be the books children play with and read prior to school. Once in school, eBook availability increases but it still only accounts for an average of 56 percent of school libraries’ inventory. In other words, children are well-indoctrinated as paper readers long before media companies supplying high schools and colleges begin trying to migrate them toward digital texts. Those same little paper readers eventually grow up, have kids, and buy even more paper books for their kids or they become school librarians (for however long that endangered calling lasts) and institutionalize the same preferences.

Winning readers’ hearts to digital text will more likely require using technology to replicate the complete experience of a book (i.e. virtual reality of some sort) rather than relying on nurturing a generation of truly digital native children. n

1. Post, Emily. Etiquette in Society, in Business, in Politics and at Home.

New York: Funk & Wagnalls, 1922. Available at: www.bartleby.com/95/7. html.

2. Id. 3. Id. 4. Aristotle. Politics. Trans. Benjamin Jowett. The Internet Classics Archive. Web Atomic and Massachusetts Institute of Technology. Available at http://classics.mit.edu/Aristotle/politics.3.three.html (noting that law is reason free from passion or unaffected by desire).

5. Milton, John. Paradise Lost, Book 9. Menston: Scholar Press, 1968 (original publication: 1667). Available at: www.dartmouth.edu/~milton/ reading_room/pl/book_9/text.shtml (critiquing that we make reason our law).

6. Coke, Edward. The First Part of the Institutes of the Laws of England. 2 vols. London: R. Pheney & S. Brooks, 1823. Available at: https://archive. org/stream/cu31924021661693/cu31924021661693_djvu.txt (observing that reason is the life of the law).

7. White, William A. Emporia Gazette, September 17, 1924 - Page 2 (editorializing that the Constitution institutes a “rule of reason and law rather than the rule of force”).

8. Doherty, Carroll, Jocelyn Kiley, & Bridget Jameson. Partisanship and Political Animosity in 2016. PEW RESEARCH CENTER, 2016.Available at: www.pewresearch.org/wp-content/uploads/sites/5/2016/06/0622-16-Partisanship-and-animosity-release.pdf.

9. Nyhan B., Reifler J. When corrections fail: The persistence of political misperceptions. (2010) POLITICAL BEHAVIOR, 32, 303–330. Available at: www.dartmouth.edu/~nyhan/nyhan-reifler.pdf.

10. Hyatt, Michael, Are You Confusing Leadership and Control? 4 Ways You Can Become a Person of Influence (2017). Available at: www.michaelhyatt.com/leadership-control-vs-influence.html.

11. Id. 12. Id. Leaf, Munro. How to Behave and Why. New York: Universe Publishing13.. 1946.

14. Id. 15. Id.

About the Author

About the Author

Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee. kslpm@larryzimmerman.com

Nathan P. Eberline serves as the Associate Legislative Director and Legal Counsel for the Kansas Association of Counties. His practice focuses on public policy, legal aspects of management, and KOMA/KORA. Nathan holds a J.D. from the University of Iowa College of Law and a B.A. from Wartburg College in Waverly, Iowa. eberline@kansascounties.org

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To get your savings code or for more information visit: http://www.ksbar.org/booksforbars

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ABA FREE LEGAL ANSWERS

WHAT IS ABA FREE LEGAL ANSWERS? ABA Free Legal Answers allows users to pose legal questions to be answered by volunteer attorneys: • Users will need to meet income eligibility guidelines • Questions must be regarding civil legal matters • Answers will be provided by volunteer attorneys in the users’ respective states • Links will be provided to lawyer referral and other legal services projects for those not eligible or who need more in-depth legal representation ABA Free Legal Answers increases services to low-income populations: • Allows users in rural areas to access legal resources from across the state • Provision of brief advice allows legal services staff attorneys to focus on full representation • Provision of brief advice can prevent larger legal crises from developing • OnlineTNjustice.org—the Tennessee model for ABA Free Legal Answers—has, in its few years of service, received over 10,000 legal questions

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QUESTIONS? If your state is not already participating and you are interested in learning more, contact Tali Albukerk at 312.988.5704 or abafreelegalanswers@americanbar.org.

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diversity corner

Sex Trafficking...and You

W

hen Dee Dee was only four years old, her father began allowing his friends to molest her. Naked, they would climb into bed with Dee Dee while her father watched from a corner of the room. Afterward, he would tuck Dee Dee into bed, kiss her forehead, and say he was proud of her. As she grew older, Dee Dee’s father encouraged her to accept gifts and sexual contact from certain influential men. Dee Dee’s mother eventually found out about one incident and told police. When she told Dee Dee’s father, not realizing his involvement, he tipped off the named friend who fled the country. Without her mother or father to turn to, Dee Dee was unable to escape the abuse until she turned 18.1 Brittany, an 18-year old student council member and youth group attendee, ran away from her Fort Worth, Texas, home after an argument with her two loving parents. Eventually, disappointed with her new life, Brittany boarded a Greyhound bus back home. On the way, she met a man, 20 years her senior, and felt an instant connection. He convinced Brittany to get off the bus with him in Dallas. They shared a hotel room and he showed her how to post ads on Backpage.com,

a website commonly used to advertise prostitution services.

She started answering “calls” and turned all the money she made over to him. Having fallen in love, Brittany was convinced she would spend her life with her “boyfriend,” until he punched her repeatedly in the face for objecting when he said he wanted to “get more girls.”2 Unfortunately, Dee Dee and Brittany’s stories are all too common in the U.S. and abroad. The International Labor Organization estimates that there are 4.5 million men, women and children trapped in forced sexual exploitation globally.3 In comparison, the population of Kansas is only 2.9 million. Sex trafficking encompasses more than forced prostitution. The term generally includes, but is not limited to, prostitution, pornography, stripping, live-sex shows, mail-order brides, military prostitution, and sex tourism.4 All 50 states currently have laws criminalizing human trafficking, and some have gone further, implementing policies and procedures to combat human trafficking through collaborative efforts byy prosecutors, law enforcement, and service

www.ksbar.org | May 2017 19

diversity corner (cont'd)

providers. Kansas defines sex trafficking as “[t]he intentional recruitment, harboring, transportation, provision or obtaining of a person . . . through the use of force, fraud or coercion” for the purpose of sexual gratification of the defendant or another. If the victim is a minor who “willingly” participates in the buying and selling process, however, no force, fraud or coercion is necessary because the child is unable to consent to exploitation.5 While being trafficked, many victims collect convictions for drugs, prostitution, loitering, and other offenses related to their exploitation. These convictions can prevent victims from obtaining jobs and housing. They are often afraid or unable to tell police or family about their situation due to captivity, threats of violence against themselves or others, fear, constant accompaniment, shame, isolation, and hopelessness.6 Efforts to recognize victims were further hampered until recently, when law enforcement began to use screening and identification measures. Currently, 28 states allow victims to have convictions related to their trafficking vacated.7 Kansas only allows victims charged with prostitution to argue they were trafficked as an affirmative defense, or to petition the court for expungement of a prostitution charge if the victim can prove the actions occurred “under coercion caused by the act of another.”8

In the face of innumerable challenges, victims need representation to guide them through the expungement process.

To begin volunteering, interested attorneys should visit www. klsprobono.org, and click the "Pro Bono and Law Student Volunteers" option. Attorneys licensed in Kansas can then indicate the types of cases they are interested in. Lawyers can then sign on later to view cases, or elect to receive emails about cases meeting their preferences. For questions, please contact Marilyn Harp, at harpm@klsinc.org.

In addition to providing legal counsel, Kansas attorneys can assist victims by learning more about human trafficking and encouraging others to become educated. Visit www.ag.ks.gov to request that a representative from the Attorney General’s Office Anti-Human Trafficking Unit be present at your next event. For additional resources, visit websites such as www.polarisproject.org, www.humantraffickinghotline.org, or www. uscis.gov. There are too many stories like Dee Dee’s and Brittany’s. And while it may feel as though our efforts are minuscule, to the victims we assist, it means the world. n

1. Lex Talamo, Victim: I was 4 when my dad started trafficking me, The Times (May 23, 2016), http://www.shreveporttimes.com/story/news/watchdog/2016/05/23/victims-sex-trafficking-share-their-stories/83538332/.

2. Id. 3. Sex Trafficking, Polaris (visited Mar. 20, 2017), https://polarisproject. org/sex-trafficking.

4. Assisting Trafficking Victims: A Guide for Victim Advocates, National Sexual Violence Resource Center, 3 (2012).

5. K.S.A. 21-5426(a), (b).

6. Assisting Trafficking Victims, 10 7. Survivor Reentry Project, ABA (visited Mar. 19, 2017), http://www. americanbar.org/groups/human_rights/projects/task_force_human_trafficking/survivor-reentry-project.html.

8. K.S.A. 21-6419(c); K.S.A. 21-6614(b)(2). Kansas also requires defendants convicted of buying sex to pay a fine that is remitted to the Human Trafficking Victim Assistance Fund. K.S.A. 21-6421(b)(2).

About the Author

20

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Merideth Hogan is a Research Attorney to Judge Atcheson at the Kansas Court of Appeals. She graduated from Washburn School of Law in May 2016 and will be moving to Kansas City this summer to pursue a career in criminal law. She can be reached at 785-383-3004 or: mericline@gmail.com

Bruce Hopkins' excellent adventure

Bruce Hopkins' Excellent Adventure SJD - What's the Point of Three (Law Degrees)

The Adventures of an Older Lawyer Who Returned to Law School for the Third Degree

SJD

I was unfamiliar with this acronym when I first saw it in connection with a new book by Bruce R. Hopkins, K.U. Professor from Practice at The University of Kansas School of Law. Apparently, I am not the only one who didn’t know the meaning of SJD, as I learned in the first pages of Hopkins’ book, “SJD: What’s the Point of Three (Law Degrees)? The Adventures of an Older Lawyer Who Returned to Law School for the Third Degree.”

With typical humor, Hopkins writes that SJD could stand for a Houston church named Saint John the Divine, or Sir John Deanes college in Northwich, England, or (as Google showed me) for the San Jose del Cabo airport in Mexico.

However, in this instance, SJD actually stands for Scientiae Juridicae Doctor which is Latin for Doctor of Juridical Science.

This advanced degree is also known as Doctor of the Science of Law or Doctor of Laws.

Even many practicing lawyers are unaware of this degree, or are only peripherally aware of it. Bruce discovered that many of his colleagues in law had quite deliberately made the decision never to darken a classroom door after graduating from law school. Many of his friends and coworkers at the Polsinelli Law Firm in Kansas City were not just surprised, but were outright shocked and somewhat horrified when they learned that Bruce intended to pursue this highest advanced law degree. It wasn’t simply that Bruce already had an undergraduate degree from University of Michigan, and his JD and LLM from George Washington University. For most people, the idea of an accomplished lawyer, teacher and prolific author pursuing another degree at the age of 72 was simply hard to believe.

Hopkins faced endless varieties of the question, “Why?” And while he tried to reasonably and rationally respond to each, the answer was not easy to condense down into a simple reply.

In the course of reading the book, one discovers that the idea of earning his third law degree was not some crazy notion that came along late in Hopkins’ career(s). He had long been interested in pursuing Bruce R. Hopkins, J.D., L.L.M., S.J.D. the degree, but had

been thwarted by the labor intensive process of taking the actual courses. As a lawyer with a full time practice in a busy law firm, an adjunct professor first at George Washington University in D.C. and ultimately at K.U., and a very productive and successful author of books of law in his area of expertise, Bruce had a difficult time figuring out just when he might fit in those classes – not to mention the studying, the reading, the paper writing and the dissertation that would be required.

Bruce discloses that on more than one occasion, when in Boston, he picked up application papers for the SJD program at what was for years his dream school, Harvard. But that was simply not to be for many reasons, not the least of which was cost – not just of the program itself, but for travel to and from.

It simply was not feasible at that point in his career to be making trips to Cambridge twice a week to attend classes.

So in 2012, while teaching as an adjunct professor at the University of Kansas School of Law, Bruce decided to take advantage of the program that was right there at K.U. As you read this book, it is striking how many instances of happenstance led to that place and time, resulting in the kismet of the right program, the right academic advisor, and the right personal circumstances to bring his long-held dream to fruition.

Don’t think for a moment the journey was a cakewalk. Far from it. Hopkins discovered that “doing in theory is much different than actually doing it." His memoir takes you through the gratifying highs and the resolve-shaking lows of his odyssey, outlining his experience in each class, and sharing anecdotes of specific incidents with his fellow students and with www.ksbar.org | May 2017 21

Bruce Hopkins' excellent adventure

professors, nearly all of whom were decades younger than himself. Their perceptions of his saga are as telling as his own.

He candidly admits his greatest challenges were the courses on taxes and banking. He also offers observations about the changes in law and students and society from the time he was in law school through his SJD course of study.

It is interesting to note that the SJD is not generally available except in the U.S. and Canada. Some 40 American colleges and universities currently offer it. In many of the programs, the degree is geared toward foreign students, those who want to become government officials or university professors in their own countries. In fact, during the time Hopkins was in the program at K.U., he and Kansas Attorney General Derek Schmidt were the only two Americans in the program. While there is not a large number of students seeking this advanced degree, Hopkins said there were maybe 15-20 individuals pursuing the degree at K.U. Throughout the book, many things about Bruce Hopkins become shiningly clear. He has a tremendous love for the law and for learning. He has a deep love, respect, and appreciation for his wife, Dr. Bonnie J. Buchele, who is an accomplished psychologist and psychoanalyst in her own right. While he takes his academic and professional pursuits very seriously, he has a delightful sense of humor that informs much of the book.

When asked what he primarily hoped readers would take from the book, Bruce replied, “That is it never too late to pursue a dream. Don’t let age or time or any other obstacle keep you from achieving a goal.” He sees that his experience has changed him, changed the way he teaches and interacts with students. As a lawyer who has taught since 1978, he now leads classes more in discussion than in lecture. No longer with a large firm, he has his own private practice focusing on nonprofit law.

Bruce continues to write. Throughout his career, his practice has focused in the area of nonprofit, tax-exempt organizations. As a brand new lawyer, one of his first jobs was monitoring the progression of major tax legislation working its way through the process in Congress. That legislation became the Tax Reform Act of 1969, which essentially created the law practice field of tax-exempt organizations. Because of his immersion in the process, he was intimately familiar with the sweeping changes brought about by the new law, and found himself sought out as a speaker at conferences and seminars that sprang out of the tax reform. Due to his growing popularity as a speaker, he was offered the opportunity to teach a non-profit law course in the evenings for George Washington University.

There was no book available for the course, so he pulled together materials from a variety of original sources to use. He began summarizing those materials. “The Law of Tax-Exempt Organizations” became his first book. Hopkins self-published the first two editions, but landed with publishers John Wiley and Sons, Inc., which published the third edition and a new edition every four years afterward, with annual supplements.

With the success of his first book, he turned to another facet 22

The Journal of the Kansas Bar Association

of his law practice for mateFrankly, it never occurred to rial and soon produced Char- me that a senior lawyer would ity Under Siege, Government have the intellectual curiosity, Regulation of Fund-Raising, drive and sheer stamina to do which under a later editor be- a full-time doctoral program, came The Law of Fundraising carry on a full legal practice (which produced its fifth edi- and superintend a publishing mini-empire….[Bruce tion in 2013).

Hopkins has authored Hopkins] is one of the most more than 30 books about remarkable men and lawyers I have ever known. nonprofit organization law, – Michael Hoeflich all published by Wiley and John H. and John M. Kane Distinguished Professor of Law Sons. Wiley also publishes his University of Kansas School of Law monthly newsletter, "Bruce 13 May 2016 R. Hopkins’ Nonprofit Counfrom the Foreward to: SJD What's sel," now in its 34th year. He the Point of Three (Law Degrees)? wrote a trade book, “Starting and Managing a Nonprofit Organization: A Legal Guide” which this year saw its 7th edition. He has co-written books on health care law, religious organizations, nonprofit governance, private foundations, higher education law, and tax exempt organizations annual information returns.

Hopkins' memoir, however, proved somewhat harder to market. His regular publisher is not in the memoir business, so it declined the opportunity to publish “SJD”. After exploring other options, Bruce decided to take the self-publishing route This book is now available through Amazon and Barnes and Noble. Interested readers can learn more about Bruce and his extensive library through his website: www.brucerhopkinslaw.com.

While my position as editor of The Journal of the Kansas Bar Association affords me many benefits, I have to say one of my favorite benefits to date is receiving my own signed first edition Bruce Hopkins. I can’t wait to see what challenge Bruce will take on next. As Benjamin Franklin said, “An investment in knowledge pays the best interest.” Indeed, Bruce Hopkins is reaping impressive dividends. n

About the Author Patti Van Slyke took the reins of The Journal in late Oct. 2016. Her background includes nearly two decades on leadership staff in the Kansas Senate; desktop layout and design in the private sector, and speechwriting and campaign material development in local, state and national elections. She also has been an actress, coffeehouse singer, and Montana cowgirl. Van Slyke is a graduate of Marymount College, with a BA in Speech and Drama. pvanslyke@ksbar.org

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800.906.9654 GilsbarPRO.com

www.ksbar.org | May 2017 23

24

The Journal of the Kansas Bar Association

The Kansas Judicial Review Act

W

hen the pens of ancient mapmakers etched out the edges of the known world, legend tells that they often inscribed the edges of their creations with the warning hic sunt dracones. Whether this label was intended to reflect a sincere warning about the dangers of the unknown or was merely meant to add a little artistic flair—or, indeed, whether it ever really happened at all—is a matter of fair debate that, unfortunately, exceeds the scope of this article.1 Ancient cartographic practices notwithstanding, when it comes to the practice of law—and, particularly, to the Kansas Judicial Review Act2 (“KJRA”)—the failure to study the landscape before plunging ahead can lead to an all-too draconian result for the unwary.

As the statutory vehicle for judicial review of agency actions in this state, the KJRA is not particularly obscure. A KJRA case is technically a civil action and is subject to supplement, where appropriate, by Chapter 60 of the Kansas Statutes Annotated.3 Nevertheless, because it is so distinct from other areas of civil litigation, its contours may be unfamiliar—and thus, perilous—to those who do not routinely practice administrative law. Unlike many other kinds of civil actions4 found at the district court level, a KJRA case is, fundamentally, an appellate proceeding,5 and thus it is beset with hidden dangers to an unwary litigant. Fortunately, the analytical approach to a KJRA case follows a specific, logical pattern that, while distinct from more freewheeling causes of action, can be readily pieced together by a prepared attorney.

Because many potential dangers may not be particularly obvious to an attorney unfamiliar with the KJRA, and because many of these dangers may be fatal to a case, this article is intended to serve as a road map to some of the latent jurisdictional traps hidden within the KJRA. Secondarily, this article aims to lay out the various standards of review available under the KJRA, with special emphasis on the recent changes made to such review by case law or statutory updates. This article is not a how-to guide to the KJRA;6 however; it is merely an attempt to help keep the unwary from getting lost along the way.

I. Highway to the Danger Zone: Establishing Subject Matter Jurisdiction Under the KJRA

Legislative history indicates that “the two main goals for the KJRA were uniform treatment of agency actions and increased accessibility to the court system.”7 At its core, the KJRA stands for the proposition that whenever an agency of this state does—or fails to do—something, there must be some mechanism by which a court can review that action or inaction. The notion that no one is above scrutiny resonates from the very heart of our system of government.8 Nevertheless, despite its fundamentally anti-authoritarian ethos, care must be made to ensure that the procedural restrictions placed upon judicial review by the KJRA do not unfairly abrogate a petitioner’s right to review in favor of an outsized con-

cern for “finality” or “efficiency.”9 KJRA does not, after all, stand for the Kafkaesque Judicial Review Act,10 but as with any system of checks and balances, the devil is very much in the details. Understanding the contours of these details is essential to obtaining meaningful review under the KJRA. Unlike most civil actions, over which a district court has general jurisdiction,11 the KJRA is purely a creature of statute. As such, a district court’s jurisdiction over KJRA litigation is limited by the statutory constraints placed upon it, and a petitioner’s failure to properly establish the district court’s jurisdiction within those constraints terminates any chance the petitioner might have had at establishing the merits of the case.12 Nevertheless, there is no great secret to establishing jurisdiction of the reviewing district court under the KJRA: the petitioner need not perform any secret thaumaturgical ritual to achieve this, and blood pacts sworn at the crossroads at midnight, whatever their usefulness in other areas of civil litigation, are utterly wasted on attempts to obtain judicial review.

In order to qualify for judicial review under the KJRA, a petitioner must demonstrate that he or she 1) has standing, 2) has exhausted administrative remedies, if applicable, 3) has timely filed a petition for judicial review, and 4) except in very limited circumstances, that the challenged agency action is a final agency action.13 This last element is the most fundamental, and thus is the natural starting point for this article’s examination of the KJRA.

II.

Agency Action

As observed earlier, a thoughtful petitioner ought to approach a challenge to a particular agency action— or inaction—from the perspective that there must be some way to obtain review over that (in)action, whether through a KJRA petition, a mandamus claim, a tort action, or other legal mechanism. Nevertheless, as Indiana Jones’s Grail Knight might caution, “You must choose.

But choose wisely[!]”14 As will be seen, selecting the wrong challenge mechanism, like choosing a false Grail, can be fatal—if only to your case.

The KJRA Applies to Agency Actions Except for those “Specifically Exempted” As articulated above, the most fundamental element of a KJRA case is the requirement of an agency action.

Under the KJRA, the term “agency” simply refers to a “state agency,”15 which is further defined as: any officer, department, bureau, division, board, authority, agency, commission or institution of this state which is authorized by law to administer, enforce or interpret any law of this state but does not include any political or taxing subdivision of the state, or any agency thereof, or the judicial or legislative branch of state government. 16 The term “agency action,” as used in the KJRA, carries an incredibly broad definition: www.ksbar.org | May 2017 25

the kansas judicial review act

(b) “Agency action” means: (1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency's performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise. 17 It is difficult to overstate the expansiveness of this final subsection. However, the KJRA does not extend to requests for judicial review of all agency actions—only those actions that are “not specifically exempted by statute from the provisions of ” the KJRA.18 This necessarily foists the unenviable burden of proving a negative—that the agency action they seek to challenge is not specifically exempted—upon erstwhile petitioners before they can obtain judicial review under the KJRA. Nevertheless, such specific exemptions are relatively rare.

The KJRA itself only lists eight such exempt classes of agency actions.19 In addition to those exemptions, the Kansas Court of Appeals recently considered the question of whether a petition for judicial review under the KJRA was the proper mechanism to obtain review of the Director of Workers Compensation’s decision to deny an insurance carrier’s request for reimbursement.20 In Cincinnati Ins. Co. v. Karns, an insurer mistakenly stipulated before an administrative law judge that it had only paid an injured worker $43,275.72 in temporary total disability benefits, when, in actuality, it had paid $79,765.72 in TTD.21 The ALJ entered an award of $125,000, minus any TTD that had already been paid, and, based on the (incorrect) stipulation, the insurer paid the worker an additional $81,754.28.22 Subsequently, the insurer discovered its error and contacted the Director of Workers Compensation, asking the Director to order the Kansas Workers Compensation Fund to reimburse the insurer for the inadvertent $28,755.96 overpayment.23 The Director denied that request and a subsequent request for reconsideration, and the insurer filed a petition for judicial review in the Shawnee County District Court.24 The district court determined that it lacked subject matter jurisdiction to consider the petition, and the insurer then appealed to the Kansas Court of Appeals.25 In order to evaluate the insurer’s argument that, while the Kansas Workers Compensation Act (“KWCA”) provided no mechanism to challenge the Director’s denial under K.S.A. 44-534a(b), the KJRA “step[ped] in” so as to grant district courts jurisdiction to review such claims, the court of appeals considered whether the KWCA was specifically exempted by statute.26 After commenting that the Kansas Supreme Court’s construction of the KWCA was “substantial, complete, and exclusive” for the purposes of covering “every phase of the right to compensation and of the procedure for obtaining it,” the court of appeals observed that the KWCA explicitly provides for the right to appeal the Board’s decisions under the KJRA, but “failed to mention any right to appeal administrative decisions made by the Director under the KWCA or the KJRA.”27 The court observed that the Legislature’s inclusion of jurisdiction for KJRA review of Board decisions, while failing to provide for that possibility in reference to the Director’s 26

The Journal of the Kansas Bar Association

decisions, “seems to indicate a clear legislative intent that such a right to appeal does not exist.”28 The bottom line, the court of appeals concluded, was that, “Because the KWCA is comprehensive and has its own provisions governing what orders may be appealed and when, the KJRA does not provide for the right to appeal the decision by the Director to deny reimbursement for overpayment of an award.”29 The Director’s denial was, unquestionably, an agency action. Nevertheless, although K.S.A. 77-603(a) provides for KJRA jurisdiction over an agency action except when that action is “specifically exempted” from KJRA review, the court of appeals essentially applied, without expressly stating as much, the principle of expressio unius est exclusio alterius30 to draw a negative inference. In effect, the court concluded that, because the KWCA already contained specific provisions for the review of certain agency actions under the KJRA, the failure to expressly mention the possibility of KJRA review for other agency actions implied that the Legislature did not intend to extend KJRA review to those other actions. Regardless of whether the court’s application of this reasoning to draw a negative inference fits within the meaning of “specifically exempted,” Cincinnati serves as a strong warning that the reviewability of an agency action under the KJRA may not be so clear cut as K.S.A. 77-603(a) suggests. In the particular case of Cincinnati, for instance, relief, “if available at all, can only be obtained through a writ of mandamus.”31 Even mandamus has its limitations, however.32 Nevertheless, when the KJRA applies under K.S.A. 77-606, it establishes the exclusive avenue of review.33 As will be discussed later, because the timeframe to file a petition for judicial review under the KJRA is usually less than that permitted under Chapter 60, the KJRA should be an uncertain litigant’s first approach to challenging a purported agency action or inaction.

III.

Final vs. Nonfinal Agency Actions

Assuming a particular agency action has not been “specifically exempted” from KJRA review, the next piece of the puzzle is determining whether the agency action is final or nonfinal. The KJRA bestows a negative definition upon the term “final agency action,” helpfully defining it as “the whole or a part of any agency action other than nonfinal agency action[.]”34 A nonfinal agency action, in contrast, is: [T]he whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.35 In other words, if an agency action requires followup from the agency, it is necessarily nonfinal. Beyond that, the court of appeals has written that: An order cannot be final if the matter is still under “active consideration” by the tribunal. [Citations omitted.]

However, the fact that ministerial tasks remain to be done does not establish that the matter is still under

the kansas judicial review act

active consideration and does not render a final agency decision nonfinal. [Citations omitted.] There is no “magic language” necessary to create a final agency action for purposes of the Kansas Judicial Review Act. [Citations omitted.]36 Except in limited circumstances, an agency action must be final before a district court can review it under the KJRA. By statute, a petitioner can only obtain interlocutory review of a nonfinal agency action if 1) a party would already probably qualify, under K.S.A. 77-607, for review of a related, subsequent final agency action, and 2) holding off on review would either lead to “an inadequate remedy” or “irreparable harm disproportionate to the public benefit deprived from postponement.”37 Additionally, an agency’s failure to act in a timely manner pursuant to certain provisions of the Kansas Administrative Procedure Act (“KAPA”)38 may permit an aggrieved party to obtain interlocutory review over that failure to act, notwithstanding the absence of a final order.39 Specifically, when an agency fails to timely render a final order, the KJRA provides that an aggrieved party may petition for interlocutory review.40 Additionally, when an agency (other than the Kansas Corporation Commission) fails to act on a petition for reconsideration of a final order within the time provided for by KAPA,41 the KJRA permits the filing of a petition for judicial review within 90 days after service of that final order, although that time may be curtailed42 if, prior to filing a petition for judicial review, the agency grants the petition for reconsideration.43 In all other instances, a final agency action is required before a district court can consider a petition for judicial review.

IV.

Agency Action vs. Tort Lawsuit

Although the definition of agency action under K.S.A. 77602(b), and particularly (b)(3), is undeniably broad, case law has carved out a major exception for allegedly tortious actions committed by agencies.44 Because an agency has no authority to commit a tort, it has no administrative power to grant relief from that tort, either, or so the logic goes; that relief, if any, can only be found in independent legal action under Chapter 60 of the Kansas Statutes Annotated. The distinction is that, “The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.”45 One might surmise that this logic would extend to breaches of contract against an administrative agency. After all, a breach is, by definition, the “violation or infraction of a law or obligation.”46 The theories underlying both civil tort claims and claims for breach of contract involve the violation of some obligation by a defendant; the principal distinction turns on whether that obligation was conferred by civil law or statute (in the case of tort actions) or by contractual duty. Therefore, one might assume—lacking any express statutory authorization for an agency to breach a contract it has entered into— that a claim against an agency for breach of contract “falls outside the authority of an agency” and, thus, would be inappropriate for review under the KJRA. Nevertheless, the courts have been quite clear that a claim that an administrative

agency breached a contract does fall within the purview of the KJRA.47 It may be fairly concluded that, if an agency has the authority to bind itself in contract, it also has the authority to unbind itself by breaching that contract, but, conversely if an agency is subject to a duty conferred by the common law or by statute, it has no authority to breach that duty, i.e., to commit a tort. Thus, the source of the duty or obligation—i.e., by operation of broader common law or statute vs. by operation of contract—appears to be the critical factor in determining whether a particular claim against an agency “fall[s] outside the authority of an agency to grant” and is thus, outside the scope of the KJRA. Because a civil tort does not fall under the KJRA, other KJRAspecific jurisdictional provisions—including the omnipresent spectre of exhaustion of administrative remedies—necessarily do not apply to civil tort actions filed against agencies.48

V.

Justiciability

A full discussion of the state constitutional justiciability requirements49 imposed on Kansas courts far exceeds the scope of this article. For our purposes, it is sufficient to repeat that, in order for a case to be justiciable under Article 350 of the Kansas Constitution, 1) the parties must have standing to bring the case, 2) the issues presented in the case cannot be moot, 3) the issues presented must be ripe, and 4) the issues cannot present a political question.51 Of the four justiciability requirements, “standing” is perhaps the most frequently litigated in the KJRA context. The final/nonfinal distinction discussed above generally dovetails with an analysis of ripeness, and the mootness analysis is generally baked into a petitioner’s ability to obtain judicial review over a nonfinal agency action when “postponement of judicial review would result in an inadequate remedy[.]”52 Moreover, as a general rule, the challenges raised in KJRA litigation stem from an administrative review process which, as a statutorilyenumerated remedy, is inherently distinct from a nebulous political question.53 Standing, at its most basic, is “A party’s right to make a legal claim or seek judicial enforcement of a duty or right.”54 As is well known, standing is a “component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time.”55 If a district court determines that it lacks subject matter jurisdiction, it lacks authority to consider any other aspect of a case.56 Consequently, as in other areas of civil litigation, a challenge to a party’s standing to bring a KJRA petition is an all-too-tempting target for a motion to dismiss.57 Under the common law test for standing, a party must show a “cognizable injury” and must “establish a causal connection between that injury and the challenged conduct.”58 A party may establish a cognizable injury by showing that they personally suffer from an actual or threatened injury resulting from the challenged action.59 A qualifying “threatened” injury is one which is both impending and probable; those claiming to suffer speculative, uncertain injuries that could theoretically result from the challenged conduct need not apply.60 In addition to the common law requirement of standing, the KJRA incorporates an additional statutory metric to establish standing as an explicit prerequisite to judicial review.61 www.ksbar.org | May 2017 27

the kansas judicial review act

A party may obtain standing to challenge a final (or, subject to the limitations set out above, a nonfinal) agency action under the KJRA if 1) the agency action was “specifically directed” at them, 2) they were party to the agency proceedings that resulted in the agency action, 3) they are subject to a rule and regulation which is the subject of their petition for judicial review, or 4) another provision of law confers standing upon them.62 Of those four pathways to standing, the first and third options are self-evident. If a rule or ruling specifically targets or affects you, you have standing under the KJRA. Moreover, the fourth option relies upon other provisions of law to establish standing under the KJRA and, thus, necessitates a case-bycase approach.63 Nevertheless, the second option—that an individual was a “party to the agency proceedings that led to the agency action”—merits additional consideration.

The KJRA defines the term “party to the agency proceedings” as 1) a person to whom the agency action is specifically directed, but also as 2) a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceedings.64 The first definition is obvious, and is already specifically provided for as an option to obtain standing, but the second is wider in scope. The term “proceeding” must be read “broadly to refer to the process by which an agency carries out its statutory duties.”65 Thus, for example, in the case of a rulemaking proceeding, “interested persons’ submission of written comments during a public notice and comment period and all persons’ comments made during a public hearing held by an agency both qualify as participation within the meaning of the KJRA's standing requirements.”66 Nevertheless, neither a spousal relationship, by itself, nor an individual’s participation as a witness in an agency proceeding qualifies an individual for standing under the KJRA.67 Thus, the more open an agency proceeding, the more latitude an individual has to establish standing.

VI.

Exhaustion of Administrative Remedies

Outside of the KJRA context, some courts have considered a statutory requirement that a party must exhaust administrative actions prior to filing a case to be “mandatory, but nonjurisdictional” and, therefore, subject to the “equitable defenses” of waiver, estoppel, and futility.68 Under the KJRA, however, the failure to exhaust administrative remedies is a jurisdictional defect that precludes review by a district court.69 Thus, the KJRA—rather than judicially-created principles of equity—governs the applicable exceptions, if any, to agencyspecific exhaustion requirements.

The KJRA sets forth four exceptions to the general rule that a party must exhaust administrative remedies prior to filing a KJRA petition:

28

(a) A petitioner for judicial review of a rule or regulation need not have participated in the rulemaking proceeding upon which that rule and regulation is based, or have petitioned for its amendment or repeal; (b) a petitioner for judicial review need not exhaust administrative remedies to the extent that this act or any other statute states that exhaustion is not required; (c) a petitioner for judicial review need not seek reconsidThe Journal of the Kansas Bar Association

eration unless a statute makes the filing of a petition for reconsideration a prerequisite for seeking judicial review; and (d) the court may relieve a petitioner of the requirement to exhaust any or all administrative remedies to the extent that the administrative remedies are inadequate or would result in irreparable harm.70

This final exception to the general rule roughly corresponds with the equitable defense of futility, while the second and third essentially codify two kinds of waiver-by-statute.

Unfortunately for the would-be petitioner, the design of the statute forces a would-be petitioner to prove a negative: either that there were no remaining administrative remedies to exhaust or that there were never any administrative remedies to exhaust in any given case. Obviously, if no administrative remedies are available, there is no additional requirement that a would-be petitioner must exhaust them.71 But the posture of the KJRA exhaustion requirement is clear: the petitioner always has to exhaust administrative remedies—except when they don’t.72 In contrast, a petitioner’s failure to raise an issue at the administrative level is not necessarily a jurisdictional barrier to the whole petition, although it may bar a district court from hearing that particular issue.73 “The entire concept of judicial review contemplates that an agency must have had an adequate opportunity to consider the merits of an issue.”74 In driver’s license suspension cases, for instance, “unless an issue is first adequately raised at the administrative hearing, it may not be raised for the first time during the district court's de novo review conducted pursuant to K.S.A. 8-259(a).”75 In fact, except in the case of appeals from certain drivers’ license suspensions,76 the KJRA specifically allows issues to be raised for the first time on appeal only when:

(a) The agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue; (b) the agency action subject to judicial review is a rule and regulation and the person has not been a party in adjudicative proceedings which provided an adequate opportunity to raise the issue; (c) the agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding; or (d) the interests of justice would be served by judicial resolution of an issue arising from: (1) A change in controlling law occurring after the agency action; or (2) agency action occurring or first reasonably knowable to the person after the person exhausted the last feasible opportunity for seeking relief from the agency.77 Of these situations, the first—that the agency lacked jurisdiction to grant an adequate remedy based on the issue—has, at times, been construed to mean that a constitutional issue may be raised for the first time on appeal from an agency action.78 However, at least one panel of the court of appeals has also rejected a party’s ability to raise a new issue alleging that an agency’s application of a statute implicated the statute’s

the kansas judicial review act

“constitutional underpinnings.”79 The implication is clear: the word “constitutional” is not magical, and its mere invocation in no way guarantees automatic judicial review of an issue notwithstanding a party’s failure to argue it at the agency level.

A petitioner who seeks judicial review of agency actions that involve issues of dubious constitutional nexus must raise those issues loudly and clearly at the agency level and beyond.

Very recently, the Kansas Supreme Court took the limitations on K.S.A. 77-617 to an entirely new level. In Sierra Club v. Mosier,80 the Supreme Court considered a second round of challenges to the Kansas Department of Health and Environment’s decision to grant a power company a construction permit to build a coal-fired power plant near Holcomb, Kansas. In the first case addressing this action, the Supreme Court determined that the agency had failed to comply with federal regulations regarding emission limits and, in order to remedy this error, remanded the matter back to the KDHE to apply the relevant regulations.81 In the second case, the Supreme Court reviewed the agency action on remand: namely, an addendum to the original permit that was at issue in Sierra Club I.82 In challenging the agency action the second time around, the petitioner attempted to raise an issue that had been previously raised and abandoned in the Sierra Club I litigation: the legality of the agency’s consideration of significant impact levels (“SILS”) in ultimately granting the power plant its construction permit.83 Stated succinctly, during the Sierra Club I litigation, the petitioner raised the argument that the provisions of the Clean Air Act do not allow an agency to excuse a violation of the National Ambient Air Quality Standards (“NAAQS”) so long as that violation does not rise above a particular SIL.84 However, the Petitioner subsequently abandoned that argument during the briefing of Sierra Club I. During the Sierra Club II proceedings before the agency, the petitioner again raised this argument—but only in its petition for reconsideration of the agency action, and without citing any authority or providing any explanation for its argument.86 The agency denied the petition for reconsideration. 87 On appeal to the Kansas Supreme Court, the petitioner again raised this issue. The court observed—without specific citation to any binding precedent—that “As a general rule, a party may not raise a new argument in a motion for reconsideration. But some courts recognize an exception when the arguments could not have been presented earlier.”88 More to the point, because the petitioner’s reference to this issue in its motion for reconsideration was “vague” and “did not give KDHE an adequate opportunity to consider the question[,]” the Supreme Court determined that the petitioner “made an insufficient effort to raise the issue before the KDHE.”89 The importance of adequately raising an issue before the administrative agency cannot be overstated, as illustrated by the concurring opinion of Judge Hornbaker, who was appointed to hear Sierra Club II vice Justice Johnson.90 As he put it, This case is not a quibble over a few stray particles.

Sunflower Electric Power Corporation is seeking to construct the largest coal-fired electric generating unit in the United States. The proposed Holcomb 2 plant will— unquestionably—spew, each year, billions of

pounds of pollutants into the air of Kansas. That, according to Sunflower's modeling in the record, will leave Kansans thousands of times a year with air that is more hazardous to their health than that allowed by the National Ambient Air Quality Standards (NAAQS).

KDHE and Sunflower relied on SILs to excuse these exceedances. I, however, see no legal basis by which a SIL could excuse an NAAQS violation. Sierra Club first thought to mention the issue in a two-page petition for reconsideration before KDHE, leaving our hands procedurally bound and unable to address the issue. [Citations omitted.] Were the court able to reach the merits of the SILs issue, I would hold that the plain language of the Clean Air Act (CAA) does not permit SILs to be used as they traditionally have been. ...

Despite my opinion on the merits of the SILs issue, as the majority holds, Sierra Club unfortunately neglected to raise this argument until this appeal. And because the argument's premise rests on statutory interpretation, Sierra Club had no reason to wait this long. [Citations omitted.] Thus I reluctantly concur in the judgment affirming KDHE's decision to issue an Addendum to the 2010 Holcomb 2 permit.91 One wonders whether the citizens of Kansas will come to find the Petitioner’s failure to raise this issue properly to be as suffocating as Judge Hornbaker evidently did. Likewise, only time will tell whether the Sierra Club II opinion’s enunciation of a new “general rule” barring the judiciary from considering issues that were only raised before an agency in a petition for reconsideration will ultimately prove to be a miasma capable of stifling judicial review.

Furthermore, the limitations set forth in K.S.A. 77-617 may handicap those petitioners who went unrepresented by counsel at the administrative level of a case. Whether or not this is fair, given the high cost of legal services and the wide range of scenarios that may entangle one in administrative litigation, is beyond the scope of this article. That discussion belongs in the Legislature, which is uniquely capable of adjusting the size and scope of procedural barriers such as K.S.A. 77-617 to better serve the interests of justice. No one likes to hear “Sorry, you would’ve won—if you’d only raised that argument earlier!” Nevertheless, the procedural default mechanism codified at K.S.A. 77-617 underscores the vital importance of involving an attorney as soon as possible in an administrative proceeding.

VII. Timely Filing of a Sufficient Petition for Judicial Review Timeliness of the Petition

The failure to timely file a petition for judicial review is fatal to a KJRA case.92 The general rule is that, subject to other requirements of the KJRA93 or another statute,94 a petition for judicial review must be filed within 30 days after service of the order, unless reconsideration has been requested (when it www.ksbar.org | May 2017 29

the kansas judicial review act

was not a requirement).95 An additional three days are added if service of the order is sent by mail or electronic means.96 If legislation subsequently shortens the period of time a petitioner has to file a petition for judicial review, such changes cannot operate retroactively: although procedural in nature, the shortening of the period of time to file an appeal can have the “practical effect of abrogating [a petitioner’s] substantive right” to appeal, and, thus, can only operate prospectively.97

Requirements for a Petition

The KJRA outlines seven items that must be included in a petition for judicial review, including “(1) The name and mailing address of the petitioner; (2) the name and mailing address of the agency whose action is at issue; (3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action; (4) identification of persons who were parties in any adjudicative proceedings that led to the agency action; (5) facts to demonstrate that the petitioner is entitled to obtain judicial review; (6) the petitioner's reasons for believing that relief should be granted; and (7) a request for relief, specifying the type and extent of relief requested.”98 The petition itself must be filed with the clerk of the district court.99 With certain statutory exceptions, “venue is in the county in which the order or agency action is entered or is effective or the rule and regulation is promulgated.”100 Venue may be available in more than one county.101 Nevertheless, “Where venue for a KJRA proceeding is proper in more than one county, the district court should give due consideration to the plaintiff's right to choose the place of the action.”102 The Kansas Court of Appeals has gone so far as to describe the transfer of venue in a KJRA case, “without having given weight to the plaintiff's choice of venue and without having found that a transfer would serve the convenience of the parties and witnesses and the interests of justice[,]” as error, albeit error potentially amenable to harmless error analysis, depending on the factual circumstances.103 Prior case law suggested that a petitioner’s failure to comply with the pleading requirements of K.S.A. 77-614(b) is a jurisdictional fault that precludes a litigant’s statutory right to appeal an agency decision.104 However, the Legislature’s 2009 amendments to K.S.A. 77-614 eradicated any notion that the elements of a petition for judicial review are jurisdictional requirements.105 Specifically, the Legislature reduced the technical barriers that previous court interpretations had erected, and opted, instead, to adopt an approach more analogous to the Kansas Code of Civil Procedure. In particular, the 2009 amendments provided that: “(c) Failure to include some of the information listed in subsection (b) in the initial petition does not deprive the reviewing court of jurisdiction over the appeal. Leave to supplement the petition with omitted information required by subsection (b) shall be freely given when justice so requires” and, further, that “(e) In any method of serving process, substantial compliance shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that the petition or appeal had been filed.”

In addition to establishing that the failure to comply with the technical requirements of K.S.A. 77-614(b) is not a juris30 The Journal of the Kansas Bar Association

dictional issue, the 2009 amendments to K.S.A. 77-614(c) generally correspond to the more liberal pleading amendment provisions of K.S.A. 60-215106and service of process provisions of K.S.A. 60-204.107 To the extent that this legislative decision opens the door for potentially meritorious claims that, prior to 2009, would nevertheless have been foreclosed by a mere technical noncompliance, the amendments are a welcome step in furthering the purposes of the KJRA discussed above.

VIII. We Can't Stop Here! This is Bat Country!: A Comparison of the Standards of Review Available Under The KJRA 108

Once a litigant understands the elements necessary to bring a KJRA challenge to a particular agency action to court, the next most important consideration is what they actually want the court to do about the agency action. As always, it must be stressed that the KJRA is an appellate procedure, not an original cause of action, and, as such, civil litigators unused to the strictures of appellate proceedings must beware—a district court can give precious little leeway to a party’s newly-raised arguments in a KJRA case, no matter how creative they may be. As noted above, a petition for judicial review can only obtain review of issues actually raised at the agency level, subject to the exceptions set forth in K.S.A. 77-617 and other provisions of law.109 Even so, the KJRA expressly limits the circumstances in which a district court can grant relief from an agency action, as discussed below. Furthermore, the nature of the district court’s review varies, depending on the challenge actually raised to agency conduct. Thus, as will be seen, it is crucial to clearly and logically establish the actual challenges raised—with reference to the particular subsections of K.S.A. 77-621(c) and explanations as to why those subsections apply—in order to obtain meaningful review over an agency action.110

Reviewable Claims

Under the KJRA, absent a specific provision of law, an agency action must be reviewed under one of the eight standards set forth in K.S.A. 77-621.111 Specifically: “(c) The court shall grant relief only if it determines any one or more of the following: (1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; (2) the agency has acted beyond the jurisdiction conferred by any provision of law; (3) the agency has not decided an issue requiring resolution; (4) the agency has erroneously interpreted or applied the law; (5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; (6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; (7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or (8) the agency action is otherwise unreasonable, arbitrary or capricious.”112 Under all of those, the burden of establishing the invalidity

the kansas judicial review act

of the agency’s action rests with the party asserting invalidity.113 Moreover, “[a] rebuttable presumption of validity attaches to all actions of an administrative agency.”114 Nevertheless, a reviewing court must apply different standards of review to each of those eight grounds. Broadly speaking, claims arising under the first six subsections of K.S.A. 77-621(c) are subject to de novo review as questions of law, although a district court may receive additional evidence, beyond the agency record, in the case of subsections (c)(5) and (c)(6).115 The final two grounds—challenges to the factual basis for the agency action or a claim that the agency acted unreasonably, arbitrarily, or capriciously—each come with their own standard of review, which will be more thoroughly discussed below. For now, it is sufficient to repeat the Kansas Court of Appeals’ observation that the analysis applied under K.S.A. 77-621(c)(7) and (c)(8) “mean different things”:

and one of the most commonly raised and litigated. It has also been the focal point the greatest seismic shift in Kansas administrative law in the last decade: the utter abandonment of the doctrine of operative construction by the appellate courts of this state.124 Under this doctrine, an “administrative agency's interpretation of a statute it is charged with enforcing is entitled to judicial deference in certain circumstances”—although the courts always ostensibly reserved the final say on the construction of a statute for themselves.125 As early as 2008, the Kansas Supreme Court began to make its unease with the doctrine known,126 and by 2009, the Kansas Supreme Court had outright declared that no significant deference is due an agency’s interpretation or construction of a statute.127 Nevertheless, parties continued to brief and argue the issue, so, in 2013, the Kansas Supreme Court attempted to set the record straight with all the subtlety of a foghorn:

A challenge under [K.S.A. 77-621(c)(8)] attacks the quality of the agency's reasoning. [Citations omitted.]

Although review must give proper deference to the agency, its conclusion may be set aside—even if supported by substantial evidence—if based on faulty reasoning. A challenge under [K.S.A. 77-621(c)(7)] attacks the quality of the agency's fact-finding, and the agency's conclusion may be set aside if it is based on factual findings that are not supported by substantial evidence. 116

In dealing with a statute in a workers compensation appeal, no deference is due the interpretation or construction given the statute by an ALJ or the Board. [Citations omitted.] To be crystal clear, we unequivocally declare here that the doctrine of operative construction, as described in Syllabus ¶ 3 and on page 448 of the Court of Appeals' opinion (Douglas, 42 Kan.App.2d 441, 213 P.3d 764), has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal. [Citations omitted.] Accordingly, that portion of the Court of Appeals' opinion is reversed and held for naught.128

At its most basic level, the choice of standard of review implicates the amount of deference a district court must give an agency action. The tension identified earlier in this article with respect to the fundamentally anti-authoritarian nature of the KJRA is nowhere more present than in determining how much deference—and, necessarily, how much authority—to afford an agency vis-à-vis the standard of review. Obviously, the more deferential the review, the more egregious a particular error must be in order to merit reversal. On the other hand, to subject every agency action to unlimited review by the judiciary would effectively end any claim the agency process might have to efficiency. Therefore, the KJRA affords the greatest deference to agency actions based on factfinding and policy judgment, while reserving the greatest skepticism for questions of law—which, ultimately, are the purview of the judiciary.

De Novo Review

As observed, six claims under K.S.A. 77-621(c)—that the agency acted unconstitutionally,117 that the agency acted beyond its jurisdiction,118 that the agency failed to decide a necessary issue,119 that the agency “erroneously interpreted or applied the law,”120 that the agency followed unlawful or insufficient procedure,121 or that “the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification”122—are subject to de novo review by the district court. In the case of these last two, a district court may even receive additional evidence beyond what is contained in the agency record.123 Despite this partial evidentiary component, however, claims arising under subsections (c)(1)–(6) can be primarily thought of as questions of law.

Of those six grounds for relief, the fourth—that the agency “erroneously interpreted or applied the law”—is the broadest

Despite the clarity of this thesaurus-busting rebuke and the intervening four years for parties to grow accustomed to it, the spectre of the doctrine of operative construction continues to haunt the briefing and arguments submitted before district courts in KJRA litigation. Moreover, the Kansas Supreme Court has now extended its crusade against the doctrine of operative construction to agencies’ interpretations of their own regulations, which are now entitled to as little deference as agencies’ interpretations of statutes.129 There is, as of this writing, only one recognized exception to the Kansas Supreme Court’s purge of the doctrine of operative construction: federal agencies are still afforded some deference in the interpretation of federal law, but the same is not true for state agencies’ interpretation of federal law, except to the limited extent that state agencies parrot federal agencies’ interpretation of federal law verbatim.130 Only time will tell if this exception endures scrutiny by the Kansas Supreme Court.

Care should be taken to conceptually distinguish an agency’s interpretation of the law (which is accorded no deference) with an agency’s policy choices (which are accorded some deference, so long as the agency has the discretion to make policy choices in the first place). Very recently, the Kansas Supreme Court clarified that, when a statutory framework gives an agency discretion as to how to enforce that framework, the judiciary must give deference to the agency’s policy decisions based on the exercise of that discretion.131 In Sierra Club II, supra, the KDHE, as state plan administrator, had been given discretion by various statutes; in light of this deference, the (Continued on Pg. 34) www.ksbar.org | May 2017 31

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the kansas judicial review act (Continued from Pg. 31)

court rejected the petitioner’s argument that the KDHE’s actions were unreasonable, arbitrary, and capricious based on the agency’s policy choices.132 More generally, where a gap exists based on the silence of statutes and regulations and where an agency has been given discretion to plug that gap, the courts “must presume the validity of the agency action and cannot substitute its judgment for that of the administrative agency unless the action is unlawful, unreasonable, arbitrary, or capricious.”133

Review for Substantial Evidence

Since its inception, the KJRA has provided that a district court may grant relief if the agency decision is not supported “by evidence that is substantial when viewed in light of the record as a whole[.]”134 (It must be remembered that, because the KJRA is an appellate process, the “record as a whole” carries with it strict statutory limitations which, while important, are relatively self-explanatory, and, thus, do not merit additional discussion here.)135 In 2009, however, the Legislature amended K.S.A. 77-621(c)(7) and (d) to clarify exactly what this phrase meant.136 As amended, these subsections now provide: (c) The court shall grant relief only if it determines any one or more of the following: ...

(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; . . . ... (d) For purposes of this section, “in light of the record as a whole” means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.137 Thus, following the 2009 amendments to the KJRA, district courts are no longer obligated to ignore contrary evidence138 and, in fact, are now expressly required to consider such evidence.

Nevertheless, as the Kansas Court of Appeals observed shortly after the 2009 amendments: The amended statute finally reminds us that we do not reweigh the evidence or engage in de novo review, in 34

The Journal of the Kansas Bar Association

which we would give no deference to the administrative agency's factual findings. Indeed, the administrative process is set up to allow an agency and its officials to gain expertise in a particular field, thus allowing the application of that expertise in the fact-finding process.

But we must now consider all of the evidence—including evidence that detracts from an agency's factual findings—when we assess whether the evidence is substantial enough to support those findings. Thus, the appellate court now must determine whether the evidence supporting the agency's decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency's conclusion. 139 Subsequent case law has refined this analysis further, such that, today, when presented with a challenge to agency action under K.S.A. 77-621(c)(7), a court must “(1) review evidence both supporting and contradicting the agency's findings; (2) examine the presiding officer's credibility determination, if any; and (3) review the agency's explanation as to why the evidence supports its findings.”140 Even more recently, the Kansas Court of Appeals confirmed that a court owes deference to an agency’s credibility determinations when the agency has actually had the chance to observe witnesses, but that a court owes no deference to agency credibility determinations made based solely on submitted testimony when an agency hasn’t actually had the opportunity to view a witness in person.141 Moreover, the court of appeals confirmed that an agency is not entitled to rely upon an expert’s testimony to the extent that the expert opines on the credibility of other witnesses or the weight of the disputed evidence—particularly, in terms of the case then-at-bar, in which the expert had not personally examined the patient but, instead, relied solely on a review of medical records.142 In such a case, the court of appeals concluded, it was proper for the district court to view the credibility determinations of the agency with skepticism because there was no support for such credibility determinations in the record.143 However, not all factual-based issues require resolution under K.S.A. 77-621(c)(7) and (d). For instance, when an agency grants summary judgment, the agency’s findings are not subject to K.S.A. 77-621(c)(7), but, rather, are reviewed under K.S.A. 77-621(c)(4) and (c)(5) “in considering de novo whether, resolving all facts and reasonable inference from the facts in favor of the nonmoving party, there exists a genuine issue of material fact and whether the party who prevailed before the agency was entitled to judgment as a matter of law.”144 Additionally, when an agency fails to consider uncontested evidence, that failure is unreasonable, arbitrary, and capricious—not a failing under K.S.A. 77-621(c)(7).145 Thus, a challenge under K.S.A. 77-621(c)(7) should not be seen as a catch-all for every factual dispute a petitioner may allege.

Review for Otherwise Unreasonable, Arbitrary, or Capricious Agency Action

The final standard of review under the KJRA—whether an agency acted otherwise unreasonably, arbitrarily, or capriciously—has a long, checkered past and has been frequently conflated with other errors of fact or law. Of all standards of

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review, this one remains the most highly deferential. It is also one of the more nebulous and poorly understood. Even more so than with K.S.A. 77-621(c)(7), parties tend to throw K.S.A. 77-621(c)(8) in as a catch-all at the end of a petition for judicial review or a brief with little or no analysis provided as to why an agency action is otherwise unreasonable, arbitrary, or capricious. But, while a claim arising under K.S.A. 77-621(c) (8) will, invariably, touch on other areas of K.S.A. 77-621(c), it remains a distinct claim of agency error and should be developed separately in a party’s pleading and briefing.

The traditional test under this standard of review asks whether an agency’s decision is “so wide of the mark that its unreasonableness lies outside the realm of fair debate.”146 Whatever its earlier meaning, however, a claim that an agency acted arbitrarily, capriciously, and otherwise unreasonably is now understood to involve an attack on the “quality of the agency’s reasoning.”147 In summarizing the analysis, the Kansas Court of Appeals has written: The Kansas Supreme Court has held that an action is unreasonable when it is taken without regard to the benefit or harm to all interested parties or is without foundation in fact, and that an action is arbitrary and capricious if it is unreasonable or lacks any factual basis.

[Citations omitted.] Essentially, the test under K.S.A. 77–621(c)(8) determines the reasonableness of the agency's exercise of discretion in reaching its decision based upon the agency's factual findings and the applicable law. [Citations omitted.] Useful factors that may be considered include whether: (1) the agency relied on factors that the legislature had not intended it to consider; (2) the agency entirely failed to consider an important aspect of the problem; (3) the agency's explanation of its action runs counter to the evidence before it; and (4) whether the agency's explanation is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. [Citations omitted.] Courts must be careful in making this review because the legislature has given the discretion to make the decision to an agency, not the court.148 These factors—and other arguments similar to them— should be carefully considered in setting forth any argument under K.S.A. 77-621(c)(8), particularly when it comes to distinguishing that claim from the others under K.S.A. 77-621(c) (1)–(7). Significantly, remember that the test asks whether the agency action was otherwise unreasonable, arbitrary, or capricious, not whether a claimed error of fact or law was additionally unreasonable, arbitrary, or capricious. In other words, while a litigant may believe that an agency interpretation of a particular statute was unreasonable, for instance, such a deficiency does not necessarily mean that the agency action was otherwise unreasonable, arbitrary, or capricious—it just means that the agency incorrectly interpreted the statute in violation of K.S.A. 77-621(c)(4).

Moreover, as noted above, the recent case of Sierra Club II reinforced the idea that an agency’s policy choices—where it has been given the statutory discretion to make them in order to fill in the details of a particular statutory scheme—are afforded some deference when evaluated under the otherwise

unreasonable, arbitrary, and capricious standard of review.149 This delegation of authority, of course, must comport with the separation of powers doctrine insofar as it must include “definite standards to guide the exercise of authority.”150 But with this qualification in mind, legislatively delegated policy choices continue to be the broadest area of deference a court may afford an agency decision.

Special Statutory Exceptions

The KJRA, as a general act governing judicial review, is permissive in nature: it controls, unless a more specific statute says otherwise. For example, K.S.A. 77-618 lists six instances in which judicial review of disputed factual issues is governed by laws beyond the KJRA and by evidence beyond the agency record.151 Where a specific statute conflicts with a general one, the specific statute usually controls.152 Thus, as with other areas where a more specific provision conflicts with a general rule set forth by the KJRA, if a case involves one of these six areas of law, the more specific rule will govern the court’s review of the case. As always, the KJRA must be the analytical starting point, but it is far from the whole story.

IX.

The Road Goes Ever On and On153

As the foregoing demonstrates, a petitioner must overcome numerous obstacles in order to obtain meaningful review of an agency action. Assuming the petition survives any challenges based on subject matter jurisdiction and assuming that no specific statute (of which the petitioner was unaware) outside the KJRA actually controls the issue, the petitioner still bears the burden of establishing that the agency action was unlawful under one of three standards of review, two of which still accord the agency with significant deference. Moreover, except in a few instances,154 the petitioner must mount any challenge based solely on the agency record—which, depending on when counsel became involved, may be paper-thin.

Additionally, and again depending on the involvement of counsel, the petitioner may still be unable to obtain review of a critical issue that went unraised before the agency, except in limited circumstances.155 Still, the recent developments discussed above have arguably made agency actions now more reviewable by the courts of this state than ever before. And while the path to judicial review is by no means an open road, it is, nevertheless, the only one available. Thus, much like life as a whole, when it comes to the KJRA, the journey matters just as much as the destination. In both cases, there is no shame in stopping to ask for directions—or to consult a map once in a while. n About the Author

(Endnotes begin on Pg. 37)

Michael S. Obermeier is the staff attorney for the Third Judicial District of Kansas. He has previously served as the faculty services senior researcher for the University of Kansas School of Law and practiced law as an associate with the firm of Fairchild & Buck in Lawrence, Kansas.

He earned a Bachelor’s degree with highest distinction from the University of Kansas in 2009, and a J.D. from the University of Kansas School of Law in 2012. He thanks Marty Snyder for her editorial support.w www.ksbar.org | May 2017 35

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Cont'd from Pg. 35 1. For a brief discussion of the debate, see, generally, Robinson Meyer, No Old Maps Actually Say ‘Here Be Dragons’, THE ATLANTIC (Dec. 12, 2013), https://www.theatlantic.com/technology/archive/2013/12/no-oldmaps-actually-say-here-be-dragons/282267/.

2. K.S.A. 77-601 et seq. Prior to 2009, the KJRA was known as the Act for Judicial Review and Civil Enforcement of Agency Actions. Laws 2009, ch. 109, § 23.

3. See, e.g., Matter of Newton Country Club Co., 12 Kan. App. 2d 638, 640, 753 P.2d 304 (1988) (applying K.S.A. 1987 Supp. 60-206(a) to extend a petitioner’s time to file a petition for judicial review under K.S.A. 1987 Supp. 77-613 to the next non-Saturday, Sunday, or legal holiday); see also Keithley v. Kansas Employment Sec. Bd. of Review, 23 Kan. App. 2d 732, 735–36, 935 P.2d 1060 (1997).

4. “A Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77–601 et seq., proceeding is a civil matter and, therefore, summary judgment is appropriate if no genuine issues of material fact exist and the party is entitled to judgment as a matter of law.” Seaman Unified Sch. Dist. No. 345 v. Kansas Comm'n on Human Rights, 26 Kan. App. 2d 521, 523, 990 P.2d 155 (1999).

5. See, e.g., Romkes v. Univ. of Kansas, 49 Kan. App. 2d 871, 880, 317 P.3d 124 (2014) (“Appellate courts exercise the same statutorily limited review of the agency action as does the trial court, i.e., as though the appeal had been made directly to the appellate court.”).

6. For further reading, see Martha J. Coffman, Procedures Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., J. KAN. B. ASS'N; February 2007, at 21, Steve Leben, Challenging and Defending Agency Actions in Kansas, J. KAN. B. ASS'N, June/July 1995, at 22.

7. Bruch v. Kansas Dep't of Revenue, 282 Kan. 764, 777, 148 P.3d 538 (2006) disapproved of on other grounds by Sloop v. Kansas Dep't of Revenue, 296 Kan. 13, 290 P.3d 555 (2012).

8. Paine, Thomas, COMMON SENSE, 1776 (“[I]n America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”).

9. Karen M. Harkins Slocomb, How the Court Got It Wrong in Woodford v. Ngo by Saying No to Simple Administrative Exhaustion Under the PLRA, 44 San Diego L. Rev. 387, 411 (2007) (“procedural default rules are designed to ensure finality to administrative and legal decisions, whereas prison grievance procedures serve as a management tool.”) (discussing the exhaustion of administrative remedies in the prison litigation context).

10. Whether or not Kafka actually said “Every revolution evaporates and leaves behind only the slime of a new bureaucracy. The chains of tormented mankind are made out of red tape[,]” as Gustav Janouch attributed to him in Conversations With Kafka, is beyond the scope of this article.

11. K.S.A. 20-301.

12. Id. (“There shall be in each county a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law, and also shall have such appellate jurisdiction as prescribed by law”) (emphasis added).

13. K.S.A. 77-607(a).

14. INDIANA JONES AND THE LAST CRUSADE (Paramount Pictures 1989).

15. K.S.A. 77-602(a).

16. K.S.A. 77-602(k).

17. K.S.A. 77-602(b).

18. K.S.A. 77-603(a).

19. K.S.A. 77-603(c).

20. Cincinnati Ins. Co. v. Karns, 52 Kan. App. 2d 846, 379 P.3d 399 (2016).

21. Id. at 847.

22. Id. 23. Id. 24. Id. at 847–48.

25. Id. at 848.

26. Id. at 848–49.

27. Id. at 849–50.

28. Id. at 850.

29. Id. at 851.

30. “The maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary

the kansas judicial review act legislative intention. [Citations omitted.] Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. [Citations omitted.]” Matter of Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).

31. Cincinnati Ins. Co., supra note 20, at 851.

32. See, e.g., Kansas Bar Ass'n v. Judges of Third Judicial Dist., 270 Kan. 489, 491, 14 P.3d 1154 (2000) (“Mandamus may not be invoked to control discretion. Mandamus does not enforce a right that is in substantial dispute.

A party must be clearly entitled to the order sought before mandamus is proper.”) (quoting Link, Inc. v. City of Hays, 268 Kan. 372, 375, 997 P.2d 697 (2000)).

33. K.S.A. 77-606.

34. K.S.A. 77-607(b)(1).

35. K.S.A. 77-607(b)(2).

36. Sprint Commc'ns Co., L.P. v. Corp. Comm'n, 45 Kan. App. 2d 460, 464–65, 249 P.3d 1210 (2011).

37. K.S.A. 77-608.

38. K.S.A. 77-501 et seq.

39. K.S.A. 77-531.

40. K.S.A. 77-631(a) (referencing K.S.A. 77-526 (addressing final administrative orders generally) and K.S.A. 77-549 (addressing final administrative orders specifically in reference to the Director of Taxation)).

41. Usually 20 days after filing the petition for reconsideration, except that, when dealing with the Kansas Corporation Commission, the petition is constructively deemed to have been denied if no order is rendered within 30 days after the filing of the petition. K.S.A. 77-529(b).

42. I.e., made subject to the rules set forth in K.S.A. 77-613(c), discussed supra.

43. K.S.A. 77-631(b).

44. “[T]he KJRA does not apply to civil tort actions against an administrative agency[.]” Lindenman v. Umscheid, 255 Kan. 610, 619–20, 875 P.2d 964 (1994). See also Platt v. Kansas State Univ., 305 Kan. 122, 379 P.3d 362 (2016); Sage Hill v. State, ___ Kan. App. 2d ___, 388 P.3d 122 (2016) (petition for review pending); Douglass v. Kansas State Univ., 22 Kan. App. 2d 171, 915 P.2d 782 (1996).

45. Reifschneider v. State, 266 Kan. 338, 341, 969 P.2d 875 (1998) (quoting Douglass v. Kansas State Univ., 22 Kan. App. 2d 171, 174, 915 P.2d 782 (1996)).

46. Black’s Law Dictionary, 8th ed., at 200.

47. Jones v. State, 279 Kan. 364, 367, 109 P.3d 1166 (2005). See also Platt v. Kansas State Univ., 305 Kan. 122, 137, 379 P.3d 362 (2016) (distinguishing breach of contract cases—which are covered by the KJRA—with a claim of retaliatory discharge, which, the Court concluded, fell outside the scope of the KJRA).

48. Platt v. Kansas State Univ., 305 Kan. 122, 135–36, 379 P.3d 362 (2016) (“After all, demonstrating to the court one's exhaustion of administrative remedies under K.S.A. 2015 Supp. 77-612—or even demonstrating that exhaustion of those inadequate remedies is unnecessary under K.S.A. 2015 Supp. 77-612(d)—still acknowledges the KJRA is in play. In other words, it recognizes that a KJRA condition must be met before jurisdictionally being allowed to proceed with a suit asking for court review of an agency action. [Citations omitted.] But we agree with Platt that such a situation is distinct from the one where the KJRA never had any applicability to a case in the first place.”) (emphasis added).

49. Sometimes referred to as the “case or controversy” requirement. See, e.g., Solomon v. State, 303 Kan. 512, 521, 364 P.3d 536 (2015).

50. “The judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law . . .” Kan. Const. art.

III, § 1. “[T]he “judicial power” is the ‘power to hear, consider and determine controversies between rival litigants.’” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008).

51. See, e.g., State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008).

52. K.S.A. 77-608(b).

53. “‘Prominent on the surface of any case held to involve a political question is found a[1] textually demonstrable constitutional commitment of the issue to a coordinate political department [legislature]; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind www.ksbar.org | May 2017 37

the kansas judicial review act clearly for nonjudicial discretion; [4] or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’” Gannon v. State, 298 Kan. 1107, Kan.1137–1138, 319 P.3d 1196 (2014) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 (1962)).

54. Black’s Law Dictionary, 8th ed., at 1442.

55. Sierra Club v. Moser, 298 Kan. 22, 29, 310 P.3d 360 (2013) (Sierra Club I).

56. Chelf v. State, 46 Kan. App. 2d 522, 529, 263 P.3d 852 (2011).

57. While the KJRA does not provide any explicit mention of dispositive motions, the Kansas Supreme Court has observed that the KJRA “may be supplemented by the Code of Civil Procedure, K.S.A. 60-101 et seq., when it is necessary to give effect to statutorily granted provisions.” Pieren-Abbott v. Kansas Dep't of Revenue, 279 Kan. 83, Syl. ¶ 5, 106 P.3d 492 (2005).

Motions to dismiss for lack of subject matter jurisdiction are relatively common in KJRA litigation. See, e.g., Bd. of Cty. Commissioners of Sumner Cty. v.

Bremby, 286 Kan. 745, 749, 189 P.3d 494 (2008).

58. Sierra Club I, supra note 55, at 33.

59. Id..

60. Id..

61. K.S.A. 77-608(a); Sierra Club I, supra note 55, at 29–30.

62. K.S.A. 77-611.

63. Insofar as I am aware, no challenge that a petitioner has standing “under another provision of law” has ever been accepted by an appellate court of this state. See Bd. of Cty. Commissioners of Sumner Cty., supra note 57, at 757; Families Against Corp. Takeover v. Mitchell, 268 Kan. 803, 807– 08, 1 P.3d 884 (2000). It would take a rare scenario, indeed, to invoke the application of that section.

64. K.S.A. 77-602(f ).

65. Bd. of Cty. Commissioners of Sumner Cty., supra note 57, at 756 (emphasis in original).

66. Id. at 758.

67. See, e.g., Heier v. Employment Sec. Review Bd., No. 111,980, unpublished opinion filed Sept. 4, 2014, 355 P.3d 722 (Kan. Ct. App. 2015), pet. for rev. denied Feb. 17, 2017.

68. Chelf, supra note 56, at 533 (specifically addressing the exhaustion requirement in K.S.A. 75-52,138). The Kansas Supreme Court has never expressly adopted the Chelf position, so it remains to be seen whether the legal reasoning behind this “mandatory, but nonjurisdictional” exception will endure. See Sperry v. McKune, ___ Kan. ___, 384 P.3d 1003 (2016).

69. K.S.A. 77-607(a); Kingsley v. Kansas Dep't of Revenue, 288 Kan. 390, 410, 204 P.3d 562 (2009); Jahnke v. Blue Cross & Blue Shield of Kansas, Inc., 51 Kan. App. 2d 678, 687, 353 P.3d 455 (2015), rev. denied Jan. 25, 2016.

70. K.S.A. 77-612.

71. Cochran v. State, Dep't of Agr., Div. of Water Res., 291 Kan. 898, 908, 249 P.3d 434 (2011).

72. In this respect, the KJRA does, indeed, begin to resemble a Kafkaesque Judicial Review Act. While some level of “gatekeeper” is always necessary to prevent excessive and frivolous litigation, care must be taken to ensure that the exhaustion requirement does not trample on the most fundamental purpose of judicial review: to ensure that all agency actions must be reviewable as a function of due process.

73. Kingsley, supra note 69, at 410.

74. Sierra Club v. Mosier, ___ Kan. ___, ___ P.3d ___ (2017) (slip opinion available at http://www.kscourts.org/Cases-and-Opinions/opinions/ SupCt/2017/20170317/112008.pdf ) (Sierra Club II). All citations are to the slip opinion.

75. Bruch v. Kansas Dep't of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006) disapproved of on other grounds by Sloop v. Kansas Dep't of Revenue, 296 Kan. 13, 290 P.3d 555 (2012).

76. The Legislature amended K.S.A. 8-1020(p) in 2016 to add the following language to its provision for a trial de novo in certain license suspension cases: “Notwithstanding K.S.A. 77-617, and amendments thereto, the court: (1) May also consider and determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter, even if such issue was not raised before the agency; and (2) shall also consider and determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter, if such issue is 38 The Journal of the Kansas Bar Association

raised by the petitioner in the petition for review, even if such issue was not raised before the agency. If the court finds that the grounds for action by the agency have been met, the court shall affirm.” Laws 2016, ch. 69, § 2.

77. K.S.A. 77-617.

78. Anguiano v. Larry's Elec. Contracting L.L.C., 44 Kan. App. 2d 811, 815, 241 P.3d 175 (2010); Solis v. Brookover Ranch Feedyard, Inc., 268 Kan. 750, 757, 999 P.2d 921 (2000); Bd. of Educ. of Unified Sch. Dist. No. 443, Ford Cty. v. Kansas State Bd. of Educ., 266 Kan. 75, 81–82, 966 P.2d 68 (1998) (“Constitutional issues present a unique situation, however, because administrative boards and agencies may not rule on constitutional questions. Therefore, “the issue of constitutionality must be raised when the case is on appeal before a court of law.” [Citations omitted.] Thus, the district court had de novo review of the constitutionality of the 1987 amendment to K.S.A. 72-8230. Consequently, we review de novo the district court's findings involving issues of constitutionality. An issue of whether a statute violates a constitutional provision is a question of law, and an appellate court's scope of review of questions of law is unlimited.”).

79. In re City of Marysville, No. 101,417, unpublished opinion filed Feb. 12, 2010, 223 P.3d 837 (Kan. Ct. App. 2010).

80. Sierra Club II, supra note 74.

81. Sierra Club I, supra note 55.

82. Sierra Club II, supra note 74, at 7.

83. Id. at 40.

84. Id. at 58–59 (Hornbaker, district judge, concurring).

85. Id. at 41.

86. Id. 87. Id. at 42.

88. Id. at 42 (citing 56 Am. Jur. 2d, Motions, Rules, and Orders § 40).

89. Id. at 43–44.

90. Id. at 57–58.

91. Id. at 58–61 (Hornbaker, district judge, concurring).

92. Pieren-Abbott, supra note 57, at 99.

93. E.g. K.S.A. 77-631(b).

94. E.g., K.S.A. 44-709(i), which, following the legislative amendments made by Laws 2015, ch. 57, § 5, now places a 16-day period of time in which to file a petition for judicial review from actions of the employment security board of review. See Norris v. Kansas Employment Sec. Bd. of Review, 303 Kan. 834, 841, 367 P.3d 1252 (2016). See also K.S.A. 8-1020(p), which provides for a 14-day period of time in which to file a petition for judicial review from the decision of the Kansas Department of Revenue regarding license suspension.

95. K.S.A. 77-613(b).

96. K.S.A. 77-613(e).

97. Norris, supra note 94, at 842.

98. K.S.A. 77-614(b).

99. K.S.A. 77-614(a).

100. K.S.A. 77-609(b).

101. Rhodenbaugh v. Kansas Employment Sec. Bd. of Review, 52 Kan. App. 2d 621, 626, 372 P.3d 1252 (2016) (petition for review filed).

102. Id. at 628.

103. Id. at 628–629.

104. Pittsburg State Univ. v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 46, 36 P.3d 853 (2001) (rejecting the prior holding in Univ. of Kansas v.

Dep't of Human Res., Div. of Workers Comp., 20 Kan. App. 2d 354, 887 P.2d 1147 (1995) that the failure to plead a petition for review with sufficient specificity to satisfy K.S.A. 77-614(b) was not jurisdictional, and, thus, could be corrected under the procedure set forth in K.S.A. 60-212(e)).

105. Laws 2009, ch. 109, § 26.

106. “. . . In all other cases, a party may amend its pleading only with the opposing party's written consent, or the court's leave. The court should freely give leave when justice so requires.” K.S.A. 60-215(a)(2).

107. “. . . Substantial compliance with any method of serving process effects valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court that might affect the party or the party's status or property.” K.S.A. 60-204.

108. Thompson, Hunter S., Fear and Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream (1971).

109. E.g. K.S.A. 8-1020(p) 110. See, e.g., Sierra Club I, supra note 55, at 87 (“K.S.A. 2012 Supp.

77–621(c)(7) (sufficiency of evidence) and (c)(8) (unreasonable, arbitrary,

the kansas judicial review act or capricious actions) were also cited by Sierra Club as grounds for relief.

Although Sierra Club cited these provisions, it did not develop arguments based on those grounds. Consequently, although these review provisions are the focus of our analysis of other issues, we will not further discuss the provision with regard to the effect of the settlement agreement and the 2009 legislation on the permitting process.”) (emphasis added).

111. K.S.A. 77-621(a)(2).

112. K.S.A. 77-621(c).

113. K.S.A. 77-621(a)(1).

114. In re Tallgrass Prairie Holdings, LLC, 50 Kan. App. 2d 635, 659, 333 P.3d 899 (2014).

115. K.S.A. 77-619(a) (permitting the district court to receive additional evidence “only if it relates to the validity of the agency action at the time it was taken and is needed to decide disputed issues regarding: (1) Improper constitution as a decision-making body; or improper motive or grounds for disqualification, of those taking the agency action; or (2) unlawfulness of procedure or of decision-making process.”).

116. In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1115, 269 P.3d 876 (2012).

117. Katz v. Kansas Dep't of Revenue, 45 Kan. App. 2d 877, 895, 256 P.3d 876 (2011).

118. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 640, 294 P.3d 287 (2013) (“Applying the scope of review provision of the KJRA to the question of whether an agency has exceeded its jurisdiction—in other words, its statutory authority—requires interpretation of the statutes establishing and empowering the agency, which in this case is the Board.

[Citations omitted.] The Board's jurisdiction is defined by the Act, and this court interprets the Act de novo just as it does all other statutes.”).

119. “Since BOTA expressly declined to decide this question, we must resolve this issue as a matter of law. K.S.A. 77–621(c)(3) provides a reviewing court may grant relief if it determines “the agency has not decided an issue requiring resolution.” This statute sufficiently authorizes this court to decide a question of law even though the agency failed to do so.” Matter of Protest of Emil Liston Found., 13 Kan. App. 2d 353, 355, 771 P.2d 77 (1989). Other cases have held that, when K.S.A. 77-621(c)(3) is implicated, remand to the agency may be appropriate. E.g. Pittsburg State Univ./ Kansas Nat. Educ. Ass'n v. Kansas Bd. of Regents/Pittsburg State Univ., 280 Kan. 408, 429, 122 P.3d 336 (2005); Berberich v. U.S.D. 609 S.E. Ks. Reg'l Educ. Ctr., No. 97,463, 169 P.3d 1147, unpublished opinion filed November 9, 2007, at *2.

120. Hoesli v. Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504 (2015).

121. “[W]hen considering the propriety of an agency's action in granting summary judgment, a reviewing court must look to K.S.A. 77-621(c) (4) (the agency erroneously interpreted or applied the law) and K.S.A. 77-621(c)(5) (the agency failed to follow prescribed procedure) in considering de novo whether, resolving all facts and reasonable inference from the facts in favor of the nonmoving party, there exists a genuine issue of material fact and whether the party who prevailed before the agency was entitled to judgment as a matter of law.” Sheldon v. Kansas Pub. Employees Ret. Sys., 40 Kan. App. 2d 75, 81, 189 P.3d 554 (2008); see also Base v.

Raytheon Aircraft Co., 50 Kan. App. 2d 508, 521, 329 P.3d 540 (2014), review denied (June 29, 2015) (characterizing the standard of review under K.S.A. 77-621(c)(5) as “broader” than that available under a challenge via K.S.A. 77-621(c)(8)).

122. “Kansas law is not clear on what it means for a decision-making body to be ‘improperly constituted.’” In re Equalization Appeal of Krueger, No. 108,452, 305 P.3d 47, unpublished opinion filed August 9, 2013, review denied June 20, 2014. However, evaluation of the issue has, in the past, required an evaluation of the statutory and regulatory requirements surrounding the composition of an agency panel. See Sunflower Racing, Inc. v. Bd. of Cty. Comm'rs of Wyandotte Cty., 256 Kan. 426, 435–40, 885 P.2d 1233 (1994) (basing its discussion on BOTA quorum rules).

In Sierra Club I, supra note 55, the Kansas Supreme Court evaluated three related arguments concerning the proper constitution of the decisionmaker, including “(1) The settlement agreement and legislation allowed the governor and the legislature to assume authority that legally lies with the Secretary of the KDHE; (2) the Intervenors usurped authority by proposing responses to comments made by members of the public; and (3) due process was denied.” Id. at 84. Although the court rejected the petitioner’s arguments, it appeared to accept that the nature of those arguments comported with the meaning of the phrase “improperly constituted as a

decision-making body.”

123. K.S.A. 77-619.

124. See, e.g., Douglas v. Ad Astra Info. Sys., LLC, 296 Kan. 552, 559, 293 P.3d 723 (2013).

125. Fieser v. Kansas State Bd. of Healing Arts, 281 Kan. 268, 270, 130 P.3d 555 (2006).

126. Denning v. Kansas Pub. Employees Ret. Sys., 285 Kan. 1045, 1048, 180 P.3d 564 (2008).

127. Higgins v. Abilene Mach., Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).

128. Douglas, supra note 124, at 559.

129. May v. Cline, 304 Kan. 671, 675, 372 P.3d 1242 (2016); Villa v. Kansas Health Policy Auth., 296 Kan. 315, 323, 291 P.3d 1056 (2013).

130. Bluestem Tel. Co. v. Kansas Corp. Comm'n, 52 Kan. App. 2d 96, 107–09, 363 P.3d 1115 (2015).

131. Sierra Club II, supra note 74, at 31.

132. Id. at 30–31.

133. Id. at 31.

134. Laws 1984, ch. 338, § 21.

135. See K.S.A. 77-618 (providing that, subject to six enumerated exceptions, “Judicial review of disputed issues of fact shall be confined to the agency record for judicial review as supplemented by additional evidence taken pursuant to this act”; K.S.A. 77-619 (detailing the limited circumstances under which a district court may receive additional evidence or, prior to the final disposition of a petition for judicial review, may remand the matter back to the agency for additional fact-finding); and K.S.A. 77620 (setting forth the scope of the agency record).

136. Laws 2009, ch. 109, § 28.

137. K.S.A. 2016 Supp. 77-621.

138. See, e.g., Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 263, 75 P.3d 226 (2003) (“Consequently, the courts must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the agency. They are to disregard any conflicting evidence or other inferences which might be drawn therefrom.”).

139. Herrera-Gallegos v. H & H Delivery Serv., Inc., 42 Kan. App. 2d 360, 361–63, 212 P.3d 239 (2009) (emphasis added).

140. Williams v. Petromark Drilling, LLC, 299 Kan. 792, 795, 326 P.3d 1057 (2014).

141. Hudson v. Bd. of Directors of the Kansas Pub. Employees Ret. Sys., ___ Kan. App. 2d ___, 388 P.3d 597, 603 (2016) (“Without live testimony, the Board was not in a position to observe the demeanor of the doctors or assess their credibility.”).

142. Id. at 604.

143. Id. at 604–05.

144. Sheldon v. Kansas Pub. Employees Ret. Sys., 40 Kan. App. 2d 75, 81, 189 P.3d 554 (2008).

145. Hudson, supra note 141, at 605.

146. Denning v. Johnson Cty., Sheriff's Civil Serv. Bd., 46 Kan. App. 2d 688, 701, 266 P.3d 557, 568 (2011), aff'd sub nom. Denning v. Johnson Cty., 299 Kan. 1070, 329 P.3d 440 (2014).

147. In re Protests of Oakhill Land Co., supra note 116, at 1115.

148. Wheatland Elec. Co-op., Inc. v. Polansky, 46 Kan. App. 2d 746, 757–58, 265 P.3d 1194 (2011) (emphasis added).

149. Sierra Club II, supra note 74, at 31.

150. Kansas One-Call Sys., Inc. v. State, 294 Kan. 220, 230, 274 P.3d 625 (2012).

151. K.S.A. 2016 Supp. 77-618.

152. E.g. Merryfield v. Sullivan, 301 Kan. 397, 398, 343 P.3d 515 (2015) 153. Tolkien, J.R.R., The Lord of the Rings: The Fellowship of the Ring (1954).

154. As set out in K.S.A. 77-618 and K.S.A. 77-619, discussed earlier.

155. I.e., those enumerated in K.S.A. 77-617.

www.ksbar.org | May 2017 39

Members in the News Changing Positions

Miscellaneous

Jason Bock has joined Fleeson, Gooing, Coulson and Kitch LLC as a member.

Audra Eidem Heinze was elected a shareholder with Banner and Witcoff Ltd, an intellectual property firm. She handles litigation, opinion work and licensing involving patents, trademarks and copyrights. Originally from Andover, Eidem Heinze works in Banner & Witcoff’s Chicago office.

Thomas Knutzen has been added to the staff of the Jefferson County Attorney. Knutzen is also Deputy Policy Director for the Kansas Securities Commission.

Kenneth Newton has joined Cameron and Herrman PA as an associate attorney. The firm is located in Wichita.

Lucas Nodine was named city attorney for Oswego. In addition to his responsibilities with the city, Lucas has Nodine Legal, a general practice law office based in Parsons. Before opening his private practice, Nodine was Assistant Labette Co. Attorney and then as General Counsel for Labette Bank.

Richard Samaniego has joined Gilliland & Hayes LLC in Wichita.

The law firm of Depew Gillen Rathbun & McInteer LC has added Joseph Schremmer as a partner.

Tavis Ternes has joined Great Bend law firm Watkins Calcara Chtd., as an associate. A graduate of Washburn Law School, Ternes received certificates in business and transactional law, oil and gas law, and natural resources law.

Thomas Witherspoon has joined the law firm of Stinson, Lasswell & Wilson, L.C., as an associate attorney.

Sandra Wunderlich has joined Tucker Ellis LLP’s St. Louis office as a partner. Wunderlich builds on the firm’s existing areas of litigation and adds an intellectual property litigation strength to the group.

Connie Achterberg was honored as part of the Salina Journal’s recognition of National Women’s History Month in March. Achterberg started her legal career in the 1950’s and has been an attorney for more than 60 years. She is currently in partnership with Samantha Angell and Catherine Craft in Salina.

R. Dan Boulware, native of Columbus, Kan., and lead attorney for the Polsinelli Law Firm, is the lead attorney representing Kansas City flood victims against the U.S. Government.

He has been working on this suit for several years.

Christopher Drahozal, The John M. Rounds Professor of Law at the University of Kansas School of Law, is part of a project working to improve international arbitration which settles cases in which billions of dollars and the validity of government regulations may be at stake. Drahozal, a member of the board of directors of Arbitrator Intelligence, Inc., works to promote fairness, transparency and accountability in the arbitrator selection process and to increase the diversity of the individuals deciding such cases.

Labette Co. District Judge Robert J. Fleming will retire July 14 with 21 years on the bench. Before being elevated to the bench, Fleming, a Washburn Law school graduate, practiced law for 28 years in Pittsburg.

Charles R. Hay, Topeka, was inducted in the Clay Center Community High School Hall of Fame for exceptional success in the field of health care and health law to local hospitals as well as throughout the state of Kansas.

At the recent Southwest Kansas Royalty Owners Associations 69th annual meeting, the following presentations were offered

by Kansas attorneys: Seth K. Jones, SWKROA Assistant Executive Secretary and attorney (Kramer, Nordling and Nordling, LLC, Hugoton) gave attendees a helpful lesson on Navigating the Kansas Geological Survey Website.

Daniel E. Lawrence (Fleeson, Gooing, Coulson and Kitch, LLC, Wichita) gave a presentation entitled, “Stop Touching My Stuff! Surface Use and Conflicts in the Kansas Oil Patch.”

David G. Seely, SWKROA General Counsel and practicing attorney (Fleeson, Gooing, Coulson and Kitch, LLC, Wichita) presented “Litigation Update and The Linn Energy Bankruptcy.”

The Peggs Wheeler Law Firm was highlighted in a recent Wichita Eagle article. Jack Peggs is the veteran, having been in practice since the 1970’s. Mindy Wheeler passed the bar in 2015. They are working together to build the practice. Peggs specialty is dental malpractice while Wheeler focuses on probate law and handles family law issues. They are located at 125 N. Market, No. 1720, Wichita.

Jeffrey N. Lowe of the law firm Stinson, Lasswell & Wilson, L.C. is now a member of the International Academy of Family Lawyers.

Lawyers Darrel Miller of Mankato and Kay Prather of Beloit were involved in a Mitchell Co. Council on Aging-sponsored

Changing Locations Clinkscales Elder Law Practice has joined with Adams Brown Beran & Ball to form a new firm, relocating to the upper level of the Ellis Co. Administrative Center, 718 Main, in Ellis. This partnership will allow them to offer elder care accounting services.

Dennis Keenan and Julie A. Carroll have joined forces to open the law firm of Keenan and Carroll Attorneys-at-Law P. A., located at 1121 Washington St. in Great Bend. Keenan’s areas of practice are business, agricultural, real estate, oil and gas, and estate law. Carroll’s practice centers primarily on family law, criminal law, landlord/tenant issues and collections.

Frank Santo has opened Santo Law Office at the Omni Business Center, 111 S. Whittier, in Wichita. Relocated from Pasadena, California, where he was a partner in the law firm of Lagerlof, Senecal, Gosney & Kruse, Santo practices in the areas of business and corporate law, litigation, intellectual property and alternative dispute resolution.

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Cont'd on p. 44

Obituaries

Mendell “Mitch” Butler, 87, died on March 14, 2017.

He was born on September 16, 1929 in Great Bend, Kansas.

In his early years, he served in the U.Ss Counter Intelligence in Trieste, Italy and Yugoslavia. The highlight of his life was his marriage to his wife, Betty. He retired in April of 1995 following 35 years in State Farm Auto Management.

During his later years, he often represented the insurance industry, appearing before the Kansas legislature. Mitch spoke at several Kansas Bar Association meetings. Following his retirement, he spent countless days working with and providing for the needs of the Wichita homeless. In April 2014, he was awarded the National Humanitarian Award in recognition of his work for the less fortunate.

He is survived by his wife, Betty; son, Mitchell (Cathy); two daughters, Melia Butler, and Lisa (Joe) Capadona.

A memorial service was held at 1 p.m. on Tuesday, March 21, 2017, at the First United Methodist Church, 330 N. Broadway. No flowers. Memorials are suggested to Interfaith Ministries, 829 N. Market, Wichita, KS 67214 and Center of Hope, 400 N. Emporia Wichita, KS 67202.

Tributes can be shared at www.bakerfhwichita.com - See more at: http://www.legacy.com/obituaries/kansas/obituary. aspx?pid=184569666#sthash.Z0hOoPmB.dpuf

Kevin David Chambers,

a lawyer and resident of Newton, died unexpectedly on Tuesday (March 21, 2017), at the age of 36.

Kevin is survived by his parents; his wife, Traci Chambers (née Siebert); his children, Chloe Joy and Andrew David; his siblings, Staci, Jeremy and Kimberly; grandfather, Robert L. Chambers; grandmother Janet Ratzlaff; and numerous nieces and nephews.

Kevin was born in Hutchinson on Sept. 27, 1980, to Timothy and Connie (Ratzlaff) Chambers. In 2003, he graduated Magna Cum Laude in Economics from Kansas State University. In 2006, he graduated from Washburn University School of Law with a J.D. and Certificate in Tax Law. Kevin furthered his legal education at the University of Florida Levin College of Law, where he received his LL.M. (Master of Laws) in Taxation in 2007. He practiced Estate Planning and Tax Law at Forker Suter, LLC in Hutchinson.

On July 11, 2009, he married Traci, an elementary school teacher. On Dec. 27, 2012 and Feb. 23, 2016 respectively, he welcomed his two beautiful children, who were a blessed part of his life.

Kevin was a devoted husband and father. His favorite times were at home with his kids, wrestling and playing with them.

He loved reading bedtime stories and making his children laugh. During good weather, you could find Kevin outside www.ksbar.org | May 2017 41

obituaries

Kevin D. Chambers obituary, Cont'd. from p. 41

working on his yard and garden. He enjoyed working on his car and helping others.

He attended Grace Community Church in Newton with his family. Friends and family loved his intelligence and sense of humor. He loved to watch sports and was an avid Kansas State Wildcat fan since childhood. He will be deeply missed by his friends, family and all who knew him.

A celebration of life was at 2 p.m. Monday (March 27, 2017) at Grace Community Church in Newton.

A memorial has been established for the family. Contributions may be sent to Broadway Colonial Funeral Home, 120 E. Broadway, Newton, KS 67114.

Condolences may be left at www.broadwaycolonialfh.com

Carolee Sauder Leek -- A remarkable life came to an

end February 28, 2017. Carolee was born May 25, 1923, in Madison, Kansas, to Aaron L. Sauder and Bess Wiggins Sauder. She married L.J. (Jim) Leek on June 20, 1945, about one year after his return from service in the south Pacific where he was the captain of PT Boat 161. They lived in Madison until 1954 when they moved, with their three children, to Mission, Kan. Carolee was restless and enrolled in law school at the University of Kansas City (now UMKC), where she was one of only three female students.

She received her J.D. in 1959 and, after passing the Kansas bar exam, joined Larry Wagner and Bill Mullins to form the law firm Wagner, Leek and Mullins. After a brief break for the birth of her fourth child, she practiced law for over 30 years.

Carolee was the first career woman lawyer in Johnson County and a role model for countless women lawyers in Kansas City.

Although few now recognize her name, she paved the way for female lawyers with her professionalism, style and class.

During her career, she became one of the premier domestic relations attorneys in Kansas. She helped end the marriages of many, a somewhat grim exercise offset by the joy of assisting couples in private adoptions. She was a board member of many organizations including the Johnson County Mental Health Association, Johnson County Boys' Club, Baker University Board of Trustees, State Committee on Penal Reform, and Mid America 7th Step Foundation, among others.

She also served on the Kansas Adult Authority (parole board) and became chairman in 1976. She was the municipal judge of Mission, Kansas, from 1965 to 1969, making her one of a handful of female judges at any level in the United States at that time. She did not take herself seriously, but she did take her job seriously. Early in her tenure as judge, she found one young woman innocent of shoplifting cheap jewelry, but guilty of "excessively poor taste".

At Baker University she was a member of the Delta Delta Delta sorority. She was a lifelong Methodist and stalwart Republican. She was chairman of the Johnson County Committee to elect Gerald Ford and was appointed by President Ford to serve on the Citizen's Advisory Board on the Status of Women. She received many professional accolades, including the LaSertoma Award as Johnson County Woman of the

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Year. With all her professional accomplishments, her greatest joy was spending time with her children, grandchildren and many close friends.

She enjoyed traveling and made trips to Europe, China, South America, Cuba, Vietnam, Mexico and Australia. She loved to work in the garden, play bridge, needlepoint and read.

She told great stories, many of which were fact based. She saw the KU-North Carolina NCAA triple overtime championship game because "there was nothing else going on that night".

She reminisced about waiting for her new husband to be released from the hospital after Army great Glen Davis broke his ribs in the Army- Motor Torpedo Boat Training Center football game on October 20, 1945, at West Point.

She struggled late in life with dementia and countless health problems. She endured trips to doctors, surgeries and hospital stays with good humor and a positive attitude. She could be a challenge, but she also showed a remarkable ability to revert to her best qualities. She maintained a sense of humor when she could not tell you the date. She had good manners when she did not know where she was or how she got there. When reminded recently that she was 93 years old, she commented, "No wonder I am in such bad shape."

Carolee was predeceased by her parents, her husband, Jim, her son, Jay, and her siblings, Mary Fran, Lee and Robert. She is survived by her children, Andrea, Kevin, David and their spouses, along with 12 grandchildren and six great grandchildren. Her family would like to thank the staffs of both the Forum of Overland Park and Park Meadows - Memory Care for their kind and thoughtful care of Carolee over the last few years. In lieu of flowers, the family suggested donations to the L. James (Jay) Leek, Jr. Memorial Scholarship at Baker University c/o Office of Advancement, PO Box 65 Baldwin City, KS 66006. A family gathering to commemorate Carolee's life was planned.

Bruce Eugene Miller

passed away from heart failure peacefully at his home in Las Vegas, Nevada on March 20, 2017, with his wife by his side.

Bruce was born on April 15, 1939, in Newton, to Chalmers "Chink" Hutton Miller and Florence May (Heck) Miller.

Bruce graduated from Kansas State University in 1961 with a Bachelor of Science degree in education and U.S. history.

He and then wife Sara Kathryn (Sylten) Miller of Hiawatha moved to Tasmania, Australia, to teach school. Upon returning to the U.S., he earned his law degree in 1970, from Washburn University in Topeka.

A scholar and a gentleman, he spent his entire career in the pursuit of community service. He served as a high school teacher in Kansas, and Launceston, Tasmania, Australia. After earning his law degree and a short time in private practice in Hiawatha, he served as Assistant U.S. Attorney for the District of Kansas, based in Topeka, and later as Deputy Attorney General, Chief of Litigation for the State of Kansas. He was then appointed by the Kansas Supreme Court as Disciplinary Administrator for the state.

obituaries

Bruce and Holly Lynn Edmonson of Herington were married by the honorable Robert Miller, Chief Justice of the Kansas Supreme Court in 1982 and they were inseparable for 35 years.

After retiring from the Disciplinary Administrator's Office in 1995, he and Holly moved to Arizona to build a home and bed and breakfast amongst the hummingbirds of the Chiricahua Mountains. In 1999, they moved to Las Vegas, where he spent the remainder of his years living in the Summerlin area.

Bruce loved physical activity. During his career and into retirement he spent most lunch breaks at the YMCA, swimming and participating in a variety of sports. Weekends were full of outdoor activities, including gardening, biking, hiking and camping. Riding his bicycle across Kansas was a yearly event in the 1990s. Bruce enjoyed social activities and he and Holly hosted many holiday parties and social gatherings in their home in Topeka. He organized canoe trips and ski trips for his office staff and family most years. One of his passions was playing chess, and he was a member of a chess club in Topeka.

Bruce is survived by his wife Holly; his brother, Richard Chalmers Miller of Wichita; his half-brother, Steve Neil Miller of Brentwood, Tennessee; sons, Peter Martin (Kristin) Miller of Grants Pass, Oregon and David Malcolm (Anne) Miller of White Bear Lake, Minnesota; grandchildren, Sadie and Karl Miller of Oregon, and Katie and Benjamin Miller of Minnesota.

Payne Harry "Darb" Ratner, Jr., Age 92, died February 11, 2017. Born in Parsons in 1924, Darb was the eldest son of two-term Kansas governor Payne Ratner and Cliffe Dodd, and the older brother of Cliff "Teno" Ratner (deceased) and JuRie Reiserer Cole of Wichita. After graduating from Topeka High School, Ratner entered the University of Kansas, where he earned a degree in business administration.

He spent a year at the Wharton School of Business, before returning to KU and earning a degree in law.

His education was interrupted briefly by his service in the Second World War. In 1942, Ratner attended the United States Navy Reserve Midshipmen's School at Notre Dame and served during the conflict as an officer at sea on the USS Pontiac, USS Midland and USS Storm King. In 1950, Ratner joined the firm of Ratner, McClellan, Pirtle & Mattox, in Wichita, where he forged a career as a successful trial attorney for more than 50 years, during which time he handled a number of high-profile cases in Kansas and across the greater Midwest.

Ratner served three terms in the Kansas House of Representatives, and was active in Kansas Republican Party politics for much of his professional life. Despite being a Navy man, Ratner's first devotion was to the air. He was an active pilot for most of his life, and handled numerous aviation cases for the family's firm. As a longtime member of the Flying Fezzes of Midian Shrine, Ratner often flew injured children for treatment at Shriner Hospital Burn Institutes across the country.

A recipient of countless professional and civic awards, Ratner was also a member of Beta Theta Pi and Phi Delta Phi fraternities, the American College of Trial Lawyers, the International Academy of Trial Lawyers, Scribes, a founding member of the Kansas chapter of the American Board of Trial Advocates, the Wichita Lawyers Club and a member of the Kansas Chamber of Commerce.

Ratner was preceded in death by his beloved wife, Barbara (Urquhart). He was the devoted father of Payne Ratner III, Cherie (Steve Gick) Ratner, Carl Ratner and Holly Nobile.

He leaves behind 6 grandchildren and numerous nieces and nephews. Darb was loved for many things, but it was his ability to find the humor in even the most difficult moments that drew people to him. Laughter filled his days and lightened the lives of everyone he knew and loved. Darb was an active member of St. James Episcopal Church, in Wichita, and, in later years, St. Mary's Episcopal Church, in Bonita Springs, FL, where a memorial service will be held at a later date. Memorials should be sent to Kindred Hospice, 2622 W. Central, Ste. #501, Wichita, KS 67203. To sign an online guestbook or leave a condolence for the family, please go to www.cochranmortuary.com - See more at: http://www.legacy.com/obituaries/kansas/obituary.aspx?page=lifestory&pid=184141444#sth ash.urs9avQO.dpuf

James C. “Jim� Wright, 78, died on March 16, 2017 of complications from type A influenza. He was born in Topeka in 1938 to Forest and Naomi Sheafor Wright; she died giving birth.

Forest later married Frances McCord, who adopted Jim when he was 13. His Aunt Marie Sheafor Lake was devoted to him.

He graduated from Topeka High School and Kansas University. While at KU, he was a member of Kappa Sigma fraternity; he later served for many years on the Corporation Board of the KU chapter. In 2011, he was elected to the Hall of Fame of the KU chapter. He graduated from Washburn University School of Law in 1963, where he was a member of Delta Theta Phi. While at Washburn, he clerked at the Kansas Insurance Department and the Kansas Corporation Commission. Shortly before graduation, Jim was hired as a clerk for the firm of Garlinghouse, Shaw, Hergenreter and Quarnstrom. After passing the bar exam, he was hired as an associate and later became a partner. In 1982, he opened a solo practice in Topeka limiting his practice to workers compensation, and retiring in 2012.

He was included in Best Lawyers in America in the category of Workers Compensation 1995-2012. Wright served two terms as a Trustee of the Kansas Bar Foundation and was chair of the Medical-Legal Committee for many years. He was chair of the Topeka Bar Association (TBA) Bench-Bar Committee, and was a 28-year member of the Ethics and Grievance Committee. He served as president of the Topeka Bar www.ksbar.org | May 2017 43

James C. "Jim" Wright obituary, Cont'd. from p. 43

Members in the News - Miscellaneous - Cont'd from p. 41

Association during the 2003/2004 term. He received the TBA Warren Shaw Distinguished Service Award in 2013, also the Topeka Bar Lifetime Achievement Award.

He was baptized at Seabrook Congregational Church in 1945. He was a member of First Christian Church (DOC).

He was a 50-year member of both the Kansas Bar Association and Topeka Bar Association. Wright was president of the Topeka Country Club in 1996, and also served as president of the Topeka Jayhawk Club, the Optimist Club of Topeka West, and the Florence Crittenton Home. He served on the boards of the Topeka High School Historical Society, the Voluntary Action Center, the KU Alumni chapter of Kappa Sigma, and was an official with the Kansas Golf Tournament Association. Wright greatly enjoyed golf, crosswords, traveling, and the KU Jayhawks.

Wright was married to Patricia Slider in 1984. With his first wife, Judi Baker, he is the father of Lori (Paul) Turec, Jeb (Patty) Wright and Ashley (Nathan) Friend. Married to Patti, he became step-father to Andrew and Charles Klotz.

He is the grandfather to Max Woodard and Jack Turec, and the step-grandfather to Cassidy (Nathan) Long-Wright, Miles Crabtree, and Lucy and Conrad Klotz. A memorial service was held at 1:00 p.m. on Wednesday, March 22, 2017 at First Christian Church, SW 19th and Gage. Private burial of the cremated remains took place at a later date at Topeka Cemetery, in the Sheafor family plot. Penwell-Gabel Mid-Town Chapel assisted the family. To leave a special message for the family online, please visit www.PenwellGabelTopeka.com.

Jim Wright - See more at: http://www.legacy.com/obituaries/ cjonline/obituary.aspx?pid=184570763#sthash.TBYI0Mgx. dpuf

program to give talks at several senior centers to inform and offer advice on issues of interest to older Kansans.

Robert Moody was profiled in the Wichita Business Journal for his work with the Wichita Bar Association to bring information and opportunity to a diverse community of those who have an interest in becoming attorneys. Moody is a litigation attorney for the Martin Pringle Law Firm in Wichita.

Nicole Romine, Cheyenne Co. Attorney was recently highlighted by the St. Francis Herald for her work there. In addition to helping the county on employment and contractual matters, she also charges and prosecutes all levels of criminal offenses, files Child in Need of Care cases and operates a limited private practice. She is also an Assistant Thomas Co. Attorney.

Alan Rupe, managing partner in Wichita and Kansas City for Lewis Brisbois earned a Lifetime Achievement Award from America’s Top 100 Attorneys.

Michelle Wade of Jetstream Aviation Law, P.A. had the article "Recent EU Issues Affecting Regulatory Compliance of Corporate Jets (Including US Registered Aircraft Operating Within the EU)” published in February, 2017, in the American Bar Association International Corporate Counsel Committee newsletter.

Shawn P. Yancy, Topeka, was recently honored for his outstanding performance by the Kansas Department of Labor’s Employee Recognition Awards Program.

New hires? Retirements?

Position changes?

Opening a new office?

Awards?

We like to shine the light on our members, so let us know!

Send your information to: Patti Van Slyke, Editor pvanslyke@ksbar.org

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kba sections

How to be a more engaged

SECTION member Newsletters

Newsletters are a great way to keep SECTION members informed of new updates in the law, awards and other honors for SECTION members, SECTION event plans and details, and unique practice opportunities throughout the state.

While staying informed is one goal for the readers of the Newsletter, it is also worthwhile to consider authoring an article for your SECTION’S Newsletter. Authorship gets your name and profile out in front of the membership and can lead to potential referrals, improved networking, and increased contacts in your area and throughout the state. The Newsletter can also serve as a tool to generate new ideas, market materials for your business or firm, or provide information important to the SECTION at-large.

There are many reasons to write and publish a Newsletter, and even to author an individual article, but the key to a successful newsletter is making it useful to your readership. To do that effectively, we need all our SECTION membership to be involved in keeping us informed about what is and is not important so we can keep you up-to-date on the most relevant, emerging, and advantageous topics possible.

SocialLink Mobile App SocialLink is a social media platform available through the Apple or Google app stores. At its essence, it is a way for our SECTION members to stay connected with one another in a more meaningful and easier way. You can follow each other easier with SocialLink than you can with other social media accounts. Try it out:

Section Website Development Much of the content placed in the SECTION newsletters can also be used for SECTION Web sites. Microsoft Word offers a simple way to convert your newsletter to a Web publication.

The KBA can assist in converting or posting the newsletters to web content. If your SECTION is interested in hosting a web site, the newsletters would be an excellent way to fill the microsite with content.

Additionally, many legal web sites are hosting blogs, or blawgs, to draw in practice area specific readers to their sites. If you have a blogger in your SECTION, this could be an opportunity to transmit helpful and needed information to your membership.

Contact Sara Rust-Martin at srustmartin@ksbar.org to discuss website development, management software and developers.

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kba sections

Continuing Legal Education The KBA Continuing Legal Ed Team is Your Partner in the Profession! We are here to provide you with the most quality legal education available in Kansas.

For a list of live, webinar, and teleconference CLE opportunities coming soon, please visit the link below. Once there, click on the orange button labeled “CLE.” https://www.ksbar.org One way we can assist your SECTION is to help you be more strategic and mindful of changing trends in CLE, emerging topic areas in your practice specialty, and up-and-coming presenters on the scene. Keep in mind: webinars are always an option for CLE programming. Remember, SECTIONS don’t have to do a live CLE each year.

But, whatever you decide, the first step is contacting us no less than 120 days before your anticipated program date to discuss these options. Contact Leslie Daugharthy at ldaugharthy@ksbar.org for more information and questions about CLE programming.

“The whole purpose of education is to turn mirrors into windows.” -Sydney J. Harris

Authorship

Looking to get noticed by your fellow professionals and SECTION members? Looking to put your name out there as an expert in your area of law? The KBA has several opportunities for aspiring authors. Try writing an article for your SECTION Newsletter or for one of the 10 yearly issues of the KBA Journal. Or, author a chapter or book on your area of practice for sale in the KBA Bookstore.

The KBA Bookstore offers recently published Treatises, Law Practice Guides, Guidebooks, and Standards, available at discounted rates to our members. And, it is our members whom we call upon to author these documents when they need drafted or updated. Authorship is one of the most relevant and exciting ways to extend your presence in the legal community.

Don’t let your opportunity slip by. Contact your SECTION President or Newsletter Coordinator today to let them know you are interested in authoring an article for the next Newsletter. Interested in authoring a Journal article, book, or chapter for the Bookstore? Contact Amanda Kohlman at akohlman@ksbar.org for details and information.

Legislative Voice As a SECTION member, one of the most significant benefits to your practice is your Legislative Voice through the KBA’s Legislative Program.

The KBA tracks all relevant and important legislative proposals throughout each legislative session. The KBA actively engages SECTIONS by requesting their expert advice on issues relating to their area of practice.

SECTION recommendations are critical in examining legislation that happens rapidly through the legislative session. These recommendations routinely shape legislative policy for the KBA. In addition to responding to legislation, each SECTION can propose changes to the law. At any time, you can join your SECTION’S legislative committee or contact the KBA Director of Government Affairs, Joe Molina, to inquire directly about a bill of concern or interest, at jmolina@ksbar.org.

Additionally, Molina publishes email alerts to KBA SECTION members and legislation-related updates through the e-weekly newsletter distributed to the KBA members, allowing you to stay informed and updated on legislation of interest to the broader legal community.

Your voice is heard at the Statehouse on a variety of issues affecting the legal community. And, we want to hear your voice directly, and through your SECTION legislative committee on legislative issues.

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kba sections

Speaking Opportunities for Section Are there civic groups or organizations interested in knowing more about what your SECTION of law practice looks like and how it impacts the community? It is not enough to say “don’t shy away” from speaking opportunities available in your community or region; instead, be proactive and engagement-seeking for opportunities to inform the communities and professional organizations about the myriad ways and practice areas where lawyers can be beneficial to the communities they serve and how you and your SECTION members can be of service to your community.

Service Projects As a SECTION, building energy and engagement within the group is a goal. One way to increase energy and engagement is incorporating a philosophy of “giving back” into the SECTION’s mission. The SECTION can consider opportunities to join other groups during a holiday season to deliver gifts to families, participate in a food drive, participate in a Habitat for Humanity building project, or other service opportunities. While many of these service projects are limited to a certain area of the state, SECTIONS can coordinate the service projects with a CLE or annual meeting so many of their members are able to participate from across regions. Or, the SECTION can create a service committee to create opportunities within regions of the state.

Participating in service projects is a visible way for SECTION members to demonstrate goodwill to the community and foster an ongoing positive relationship by benefiting the communities that sustain us. Additionally, participating in service projects is an excellent way for SECTION members to achieve a shared goal and engage in shared work through close interaction. Service projects can build energy and engagement within our SECTIONS. Look for ways you can get involved in service projects in your SECTION.

Networking Networking is essential to almost any career, but especially to an attorney. We need each other. Networking is building relationships over time and establishing a good reputation. Your SECTION is essential in forming your network, here is how: Social Engagements: Plan to attend engagements where people can get to know you better and you can get to know them. Networking is about knowing who is there to help you and knowing whom you can assist. This is best done through relationship-building and that is best accomplished through face-to-face contact. So, it is a great idea to participate in SECTION social events even if you don’t stay the entire time.

Five Top Benefits of Networking: 1. Strengthens Relationships 2. Raises Your Profile 3. Opens New Doors 4. Widens Your Support Network 5. Source of Fresh Ideas

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Upcoming CLE Schedule

Live:

2017 Midwest Intellectual Property Institute May 5, 2017 Sprint Corporation 6050 Sprint Pkwy (Sprint Campus) Overland Park, KS 2017 Health Law CLE May 12, 2017 Hyatt Place Kansas City/Lenexa City Center 8741 Ryckert Street Lenexa, KS 2017 Appellate Law CLE May 19, 2017 Kansas Law Center 1200 SW Harrison Street Topeka, KS 2017 Solo and Small Firm Conference May 26-27, 2017 DoubleTree by Hilton 200 McDonald Drive Lawrence, KS Brown Bag Ethics Replay June 6, 2017 Wichita, Topeka Brown Bag Ethics Replay June 13, 2017 Kansas Law Center 1200 SW Harrison Street Topeka, KS The Relevance of Civil Rights Encompassing the Daily Practice of Law Debut June 16, 2017 Kansas Law Center 1200 SW Harrison Street Topeka, KS Legislative & Case Law Institute (LCLI) Debut June 17, 2017 Multiple Locations

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KBA REPLAYS – Brown Bag Ethics, The Relevance of Civil Rights Encompassing the Daily Practice of Law, and Legislative & Case Law Institute (LCLI) June 19-30, 2017 Multiple Locations Ethics for Good XVIII June 28, 2017 Nelson Atkins Museum of Art 4525 Oak Street Kansas City, MO Ethics for Good XVIII June 30, 2017 Polsky Theatre, JCCC Carlsen Center 12345 College Blvd, (College & Quivira) Overland Park, KS

Webinars:

Mesa CLE Webinar: Copywriting for Lawyers: How to Win Cases and Influence People May 4, 2017 (Noon-1:00 PM) Mesa CLE Webinar: Supervision: Responsibilities Regarding Non-Lawyer Assistance May 9, 2017 (Noon-1:00 PM) KBA Webinar: CLE Updates May 16, 2017 (Noon-12:50 PM) Mesa CLE Webinar: The Personal Contact Rule: No Draculas Allowed May 17, 2017 (4:00-5:00 PM) KBA Webinar: The Foundations of Smart Practice Management: Casemaker + CosmoLex May 25, 2017 (Noon—12:50 PM) Mesa CLE Webinar: Show Me the Ethics!

The Ethycal Way to Bill for Legal Services May 31, 2017 (Noon-1:00 PM)

On the Christian Origins of American Legal Ethics

by M.H.Hoeflich1

I

have spent much of the past forty years studying the history and origins of American legal ethics. After such a long period of reading I have come to believe that, for the most part, the practicing bar and the legal academy do not know very much about how American legal ethics came to take the shape they have taken nor what factors influenced their development.

I think that this is very troubling because I believe that unless we understand how our present rules came about and by what factors they were shaped, it is extremely difficult to consciously shape their development in the future.

The chronology of the development of American legal ethics rules has been fairly well established over the past two decades.

The conventional description of this development traces the modern Rules of Professional Conduct most directly to the American Bar Association Code of 1908, which itself was directly dependent upon the first official state code, that of Alabama, adopted in 1887, and, to a large extent, written by Thomas Goode Jones, a leader of the Alabama Bar and one of the first true corporate lawyers in the United States.2 Both the Alabama Code of 1887 and the ABA Code of 1908 were decisively influenced and shaped in large part by the writings of two earlier nineteenth century jurists: David Hoffman’s Course of Legal Study and Fifty Rules on Professional Deportment which appeared in the 1836 second edition of the Course of Legal Study and Judge George Sharswood’s Essay on Professional Ethics, based upon his lectures at the University of Pennsylvania and first published in 1856.3 But this chronology does not explain why the basic concepts embraced in these sources, i.e. confidentiality, loyalty to the client, preservation of the justice system, among others came to be included in these sources. In fact, there has been little research into the sources of modern professional ethics. A few scholars, most notably Professor Thomas Shaffer of Notre Dame Law School, have argued that American legal ethics has a Christian moral root and that legal ethics today should be founded on Christian ethical principles.4 In this paper, I want to bring to light a number of sources not fully discussed by Professor Shaffer but which support his thesis on the importance of Christian beliefs on the origins of American legal ethics.

Over the past two decades, I have argued in both published and unpublished work that it is necessary to broaden one’s approach to the history of legal ethics in the United States if one is to construct a convincing history.5 I have suggested that

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on the Christian origins of American legal ethics

there are multiple “traditions” in American legal ethics and that in order to discover and understand these traditions it is necessary to examine little noticed sources, often seemingly not connected directly to legal works. Furthermore, I think that we must abandon what has become a search for a “dominant” influence or even “dominant” view of legal ethics in the nineteenth and twentieth centuries. Instead, I believe that we need a far more nuanced view of the development of American legal ethics. As I have argued earlier, I believe that we must first abandon our habit of looking solely at “legal” sources per se and recognize that lawyers, like most human beings, do not live in isolated professional silos, only reading legal and professional works. In the nineteenth and twentieth centuries, lawyers lived in the broader American society as they do today.

They went to universities and small colleges; they read widely in literature, science, and philosophy, they worked not only in courts but in board rooms and in merchants’ offices; they worshipped in churches and meeting-houses, and synagogues. We cannot assume that lawyers’ ethical ideals developed free of all of the non-legal factors in their lives. In this essay I intend to begin to explore briefly two interrelated sources that have not been adequately considered by historians of American legal ethics.

The sources for the development of American legal ethics in the nineteenth century I will discuss in this paper include those already well known to legal historians and ethicists, such as the works of David Hoffman and Judge George Sharswood, but, also, less known works, such as the ethical writings of Christian ministers and theologians, including the works of Jonathan Dymond, a Quaker theologian, and Thomas Gisborne, an Anglican priest and philosopher, works that attempted to harmonize success in business, law, and other professions with Christian ethical practices.6 These works were popular among businessmen, doctors, lawyers, and other professionals in the United States in the nineteenth century. As part of this argument I will also discuss a fascinating but little known document published by the American Tract Society, a Christian proselytizing group, in the period before the Civil War. This document, titled “Rules for Christian Mechanics, Merchants, &c.” strongly parallels Hoffman’s Fifty Resolutions in its structure and in its content and helps us to understand that Christian religious ideas influenced not only legal ethics but business ethics generally in the antebellum period.7 In this paper, I want to emphasize that one of the shared beliefs of much of antebellum American society was a belief in the Christian religion, a belief and religious frame of reference that affected all aspects of life. Thus, to summarize: my thesis in this essay is quite simple. Lawyers for most of the nineteenth century were overwhelmingly white, male, and middle-class. The vast majority were educated locally through the apprenticeship system with more senior lawyers and judges.8 A small proportion also attended law schools, both universityaffiliated and independent.9 But throughout their lives they did not live apart from the rest of society, a society that was predominantly Christian.10 Indeed, accounts of lawyers’ lives, from diaries kept by apprentices to eulogies spoken at memo50

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rial services, all emphasize that the ideal American lawyer in the nineteenth century was a man who was a good Christian and a community leader as well as an active member of the bar.11 Lawyers worked with and for merchants and farmers and industrialists and other business people throughout their professional lives. They attended Church on Sunday with the rest of their friends and neighbors. And, thus, if we want to understand the broad bases upon which nineteenth century ideas of legal ethics were built, we cannot possibly pretend that lawyers lived in a professional vacuum and that the rules of “professional deportment” as David Hoffman called them, were formed in a religious vacuum.

The rules of fair dealing, the rules against excessive greed in transactions, the rules against lying, all of these ethical ideals did, in fact, develop not only amongst lawyers, but also amongst business people in general. And underlying these professional and business precepts were, I would argue, Christian religious beliefs and rules. A few illustrations will help to understand this point.

Sometime before the Civil War, most likely in the 1830s, the American Tract Society, a Christian evangelical publishing group, published a short document entitled “Rules for Christian Mechanics, Merchants, &c.” One may surmise that the reason for this publication was the realization that increasing numbers of young men were leaving their rural and small town homes to seek success in business in the growing urban centers of the United States.12 Thousands of young men were filling rooming houses and taking entry-level positions in retail and industrial enterprises, all in the hopes of bettering themselves economically and socially. Such a large number of young men living on their own posed unique social problems for communities and for employers. This led to the establishment of such social organizations as mercantile libraries, young men’s Christian associations, and outreach organizations like the American Tract Society. The goal of all of these groups was to ensure that these young clerks would spend their time in activities which would benefit them in their careers and assure that they lived, wholesome, upright, Christian lives.

The ATS Rules consist of twenty-nine short precepts [more than the Ten Commandments; fewer than Hoffman’s Rules of Professional Deportment]. All share the underlying notion that a good Christian is one who deals fairly with others, is economical and industrious, and, as Rule 7 states is “scrupulously honest, and beware of the maxim so common, no principle in trade.” This rule, in particular, echoes very much the writings of David Hoffman, Judge George Sharswood, and other early legal ethicists who were very concerned with popular distrust of lawyers and the belief that lawyers were inherently as well as professionally, dishonest.13 In suffering this popular disdain, lawyers, obviously, were not alone, and business elders were as much concerned with combatting popular negative stereotypes of what they did and how they behaved, as were the leaders of the bar.

But the reasons given for following these rules of conduct were not simple professional advancement, they were also, as the twenty-ninth Rule stated, because “God sees me.” Here, I

on the Christian origins of American legal ethics

would suggest, is a rule of strict honesty applicable equally to the bar as to the business community. Certainly, publication of such a rule, as well as widespread adoption of the behavior called for, would have, in the eyes of the leaders of the legal profession and of the business community, great benefit in the maintenance of public faith in these groups. But to assume that this was the only motivation behind such rules of honesty is to assume that lawyers and business people of the day were highly cynical actors and to ignore their own explicit statements, as in the ATS Rules, that honesty was a requirement placed upon business people not simply to gain public favor, but, also, as a result of religious obligation.

Indeed, one of the most interesting and revealing ethical debates of this period is whether outward compliance with professional rules was sufficient or whether it was necessary for a businessman or lawyer to comply with a rule even when nobody would become aware of non-compliance.14 Put in its simplest terms, was a good Christian lawyer required to be honest in all acts, even when dishonesty would never be discovered? If the sole purpose of honesty and fair dealing requirements were to reassure the public and maintain professional reputation, absolute honesty would not be required.

Instead, honesty would be determined by the situation and by the likelihood that a dishonest act might become known. Almost universally, the answer to this question was that nothing short of absolute honesty was acceptable because that is what God requires of men.

An illustration of this debate is found in a lecture on “Mercantile Character” in the July 1840 issue of Hunt’s Merchant Magazine.15 In the course of speaking about the temptations to dishonesty that present themselves to the merchant and businessman every day, the author says: A sure test of the iniquity of all such practices is, that they skulk from observation. If a man dare to do what he dare not tell, his conscience must be seared, or it will plainly accuse him [emphasis added].16 The greatest philosophical and ethical question posed by law practice in the nineteenth century did not concern conflicts of interest nor confidentiality, but, rather, whether it was ethically proper for a lawyer to represent a client whom he knew to be guilty or whose cause he knew to be unjust.

A number of years ago I published an article in which I argued that although most modern American lawyers believe that there is no ethical problem in representing a client who is guilty, in the nineteenth century there were two schools of thought on this point.17 One school, following the theories of Lord Brougham, as enunciated in his celebrated defense of Queen Caroline of England, holds that it is ethically permissible for a lawyer to represent a client whom he knows to be guilty or whose cause is morally unjust. Indeed, followers of Lord Brougham argue that it is not only morally permissible to represent such clients, but that it is systemically necessary for lawyers to do so because otherwise our adversarial system

of justice could not function.18 Those who follow such a tradition argue that our system is one that depends upon lawyers presenting the best cases that they can ethically make for their clients [of course, they may not lie nor aid their clients in lying in making their cases] so that those charged with deciding, i.e. judges and juries, are able to make informed judgments.

Proponents of this view cite Dr. Johnson’s quip that were lawyers to do otherwise than represent all clients regardless of the justice of their cause then lawyers would, in fact, be usurping the judge’s role.19 This certainly has been the dominant view of American legal ethicists in the twenty-first century.

In my earlier article, I argued that a different tradition existed in American legal ethics, one first discussed by Professor Shaffer and found in the works of David Hoffman, Judge Sharswood, and a number of other professional and popular sources. I argued that according to this tradition, a lawyer is a “gatekeeper” and that ethically, there were situations in which a lawyer should be deemed to act unethically by taking on the representation of a client. According to the proponents of this tradition, lawyers who represent clients in civil litigation in which they either know factually that their client’s case is unjust or in which they use legal “technicalities” such as the Statute of Frauds to convince a court to refuse to enforce an otherwise binding debt act unethically. In this article I cited numerous professional and popular sources to show that this “other tradition” was strong in nineteenth century America.

However, in this earlier article, I failed to clearly identify the sources for this tradition.20 Jonathon Dymond was an English Quaker who gained great notoriety for his writings on philosophy and, above all, pacificism.21 One of his works, the posthumous Essays on the Principles of Morality and on the Private and Political Rights and Obligations of Mankind, which first appeared in England in 1829 and was reprinted multiple times in the United States beginning in 1834, was particularly relevant to lawyers since a significant section of the work was devoted to the ethics of legal practice.22 The fact that the book was reprinted in the United States more than half a dozen times in the period before the Civil War demonstrates that it was widely disseminated and read.23 Dymond approached his discussion of legal ethics by asking why a book on general morality should have a section on the ethics of a particular profession. His answer is rather blunt: …the answer is simply this, that the practice of this particular profession peculiarly needs it. It peculiarly needs to be brought into juxtaposition with the sound principles of morality.24 Dymond goes on to say that the particular moral problems of the legal profession are very much in the public mind and that they need to be resolved. He sees the moral failings of the practice of law to derive from two sources: the strict adherence to the often overly technical rules of the law to the detriment of equity and the overly complicated nature of the law and lewww.ksbar.org | May 2017 51

on the Christian origins of American legal ethics

gal proceedings. These combined, he argues, cause the results of litigation often to be unjust. He is particularly bothered by the notion that lawyers ask only whether a particular act is legal and do not inquire further as to whether it is moral according to a Christian worldview. He says: Lawyers familiarize to their minds the notion, that whatever is legally right is right; and when they have once habituated themselves to sacrifice the manifest dictates of equity to law, where shall they stop?25 This then leads to further declines in the morality of the bar: The practice of disregarding rectitude in courts of justice will become habitual. They will go onward from insisting upon legal technicalities to an endeavor to pervert the law, then to giving a false colouring to facts, and then onward and still onward until witnesses are abashed and confounded, until juries are misled by impassioned appeals to their feelings, until deliberate untruths are solemnly averred, until, in a word,, all the pitiable and degrading spectacles are exhibited which are now exhibited in law practice.26 Dymond is quite definite in his opinion on the role of morality, Christian morality, and law: …a lawyer is obliged to hold morality as paramount in his own practice. If one may not urge an unjust legal pretension, another may not assist him in urging it. No man may say it is the lawyer’s only business to apply the law. Men cannot so cheaply exempt themselves from the obligations of morality.27 Thus, according to Dymond a lawyer cannot represent a client he knows to be guilty nor can he argue for an unjust cause when to do so might cause an immoral result. According to Dymond, lawyers must follow the same moral tenets as every other Christian. To do otherwise is both hypocritical and a violation of God’s order.

There are a number of points that must be said about Dymond’s views on the ethics of law practice. First, they do not deviate substantially from those of David Hoffman or Judge George Sharswood. Second, Dymond’s Essays were published just before Hoffman’s second edition of the Course of Legal Study in which he first introduced his influential Fifty Rules on Professional Deportment. Third, not only were Dymond’s Essays frequently reprinted and read by business and professional men, the Quaker community was extremely powerful in business and law in Phliadelphia and throughout the antebellum United States. The evidence suggests that Dymond’s arguments were known and read in this country.

I would also suggest to you that Dymond’s arguments found a particularly accepting audience amongst those people in the United States who were opposed to slavery. Slavery was the greatest social and political problem facing Americans before the Civil War. It was particularly problematic both for Christians, for whom slavery was hard to reconcile with tra52

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ditional theology, and for lawyers who were opposed to slavery, and who were confronted with the problem that slavery while immoral and against divine law was legal in many of the United States.28 The debate as to whether law was required to be consistent with morality was one that had great power in all areas of legal thought, even reaching into contract law and the question whether immoral contracts could still be enforced if they were legal.29 Those who wished to argue that law and Christian morality were coextensive so as to challenge the legal status of slavery would have welcomed Dymond’s arguments that lawyers were not “exempt” form the dictates of morality. Thus, we may assume that Dymond and his followers would have condemned a lawyer who represented a slave owner seeking return of his “property” in a court of law.

Thomas Gisborne was an Anglican clergyman and a near contemporary of Dymond’s who was born in 1758 and died in 1846.30 He was a graduate of Cambridge University and spent his entire career as an active clergyman. He was also a noted abolitionist and close ally of William Wilberforce.31 He was also a prolific author on the Bible and on ethics and morality. In the latter category his best known works were his Principles of Moral Philosophy, An Enquiry Into the Duties of Men in the Higher and Middle Classes of Society and his Enquiry into the Duties of the Female Sex. An Enquiry Into the Duties of Men in the Higher and Middle Classes of Society was first published in London in 1794 and subsequently reprinted in multiple editions in London and Dublin.32 The ninth chapter of this book bears the title “On the Duties of the Legal Profession.” It is a thoughtful analysis of the ethical duties of lawyers based upon Christian principles. The chapter begins by asking whether a lawyer may use: …immoral means…to accomplish a beneficial end; that acts of fraud and injustice may be vindicated and abetted, for the sake of upholding a system, by which fraud and injustice are on the whole restrained.33 His answer is absolutely clear: By no means: it gives no countenance to a doctrine so clearly condemned in the Gospel.34 Gisborne goes on to consider the same problem which troubled Dymond and so many lawyers of the period. Could a lawyer ethically take on the representation of a client whose cause he knew to be unjust? And, like Dymond, Hoffman, and others, his answer is “no” and “no” because to do so would be to violate the standards of Christian morality.35 Gisborne also contradicts his contemporary William Blackstone on a small, but telling, point. Blackstone believed that barristers were gentlemen and that their behavior as lawyers and gentlemen should, to the extent possible, be modeled on that of the great Roman lawyers, particularly Cicero. It was on this basis that Blackstone argued that it was unethical for a lawyer to sue his client for a fee. But Gisborne recognized that there was an inherent problem in basing legal ethics on the behavior of the Roman jurists, even one so great as Cicero.

on the Christian origins of American legal ethics

The Romans were pagans and pagan ethics were not always consistent with Christian ethics. Thus, while Gisborne stated that Christian lawyers needed to evaluate Roman models; those that were not Christian should not be emulated. On the other hand, there were some Roman ethical rules that were acceptable and, in Gisborne’s words, these “ a Christian need not blush to accept.”36 Once again, Gisborne’s treatise, like Dymond’s provides strong evidence that what I have called “the other tradition” in American legal ethics, that a lawyer is morally obligated to act as a gatekeeper to the courts, had a Christian ethical foundation.

While children’s stories are not generally seen as standard sources for legal ethics or legal history, I want to conclude this lecture today with an analysis of a story that first appeared in Graham Magazine’s February 1849 issue and which was reprinted numerous times thereafter in collections for children. [it is interesting to note both the Philadelphia printing location and the fact that this magazine’s editor was none other than Edgar Allen Poe]37 I take the quotes in this lecture from an 1858 collection of stories and poems designed for the edification of young people: Rebecca Lathrop Hill’s Grandmother’s Scrap-Book; or, Western Gleaner.38 Why do I use a children’s story as evidence of what people believed legal ethics should hold? I do so because what people teach their children generally represents their most cherished beliefs. We do not generally teach our children what we ourselves do not believe.

Further, we teach our children what we believe are the most important moral and religious principles in our lives because we want our children to model and follow the religion that we follow. Thus, to see what children’s stories said about subjects is to know what their parents believed.

John Todd’s “The Lawyer’s First Case” is a fascinating story that illustrates the argument over legal ethics that occupied jurists and lawyers at the time. We know little about John Todd other than that he signed his name to the article as “John Todd, D.D., i.e. doctor of divinity,” so that it is likely that he was a Christian clergyman. The protagonist of the story is a young Vermont man whose mother is dying. On her death bed she tells him that she wishes that he would become a minister, a “preacher of the gospel, and, thus, a benefactor of the souls of men.” He tells her that he cannot do this because he feels unworthy of such a task, but that, instead, he will become a lawyer. His mother greets this news with dismay. But says that if he must be a lawyer, that she wants him to promise her that he: …will never undertake any cause which you think is unjust, and that you will never aid in screening wrong from coming to light and punishment…39 Her son responds “something about every man’s having the right to have his case presented in the best light he could.” She responds to this forcefully: I know what you mean…but I know that if a man has violated the laws of God and man, he has no moral

right to be shielded from punishment. If he has confessions and explanations to offer, it is well. But for you to take his side, and for money, shield him from the laws, seems to me no better than, if for money, you concealed him from the officers of justice, under the plea that every man had a right to get clear of the law if he could.40 At this point in the story, the mother observes that she is weak and going to die and, thus, her dutiful son gives her “with much emotion the solemn promise which she desired."

She then dies. Several months later, having left his hometown and resettled elsewhere, he puts out his shingle and begins the practice of law. Within a short period, he becomes quite desperate for legal work and then, one marvelous day, a client appears. The client has breached a contract for the sale of oxen. He admits that he took the oxen, butchered them, and sold the meat for a profit but he does not want to pay the old farmer who sold them to him. He explains that when he purchased the oxen he was below the age of majority and, thus, is not legally responsible for the debt. He offers the poor young lawyer five dollars [a large sum at the time] to take his case to court. Mindful of his promise to his Mother, he refused to take the case and was left feeling “poor and discouraged.”

But then he heard his dear Mother’s ghostly voice say to him “Right, my son, right.”41 A few days later another potential client came to see him and asked him to defend him on a charge of having stolen a beehive. Alas, the would-be client confessed that he had done the deed, but that he had a friend who would provide him with an alibi. At that moment: The man took out twenty dollars. It was a great temptation. The young lawyer staggered for a moment. ‘No sir, I will not undertake your case. I will not try to shield a man whom I know to be a villain from the punishment he deserves. I will starve first.42 Of course, this being a child’s tale wherein virtue is always rewarded, within a few days a much more morally appealing and wealthy client comes to his office and hires him.

The young lawyer does a splendid job and not only wins his first significant fee, but also the hand of his client’s beautiful daughter. Virtue is, indeed, rewarded and they live happily ever after.

“The Lawyer’s First Case” closely reflects the tradition of lawyer as gatekeeper that is so prominent in the writings of Jonathan Dymond, Thomas Gisborne, David Hoffman, and Judge George Sharswood. The element of religion is made absolutely clear in the story as well. A good Christian lawyer cannot separate his life as a Christian from his professional life. There cannot be a separation between morality and law for such a lawyer. Just like the young merchant’s clerk who must conduct his business in accordance with Christian principles, so must the young lawyer conduct his law practice.

Here the basis for the legal ethical rule parallels the basis for a rule of business ethics and both derive from the same source: religion, explicitly the Christian religion. www.ksbar.org | May 2017 53

on the Christian origins of American legal ethics

It is too easy today for us who live in a secular society wracked by contention and controversy over social and religious issues to dismiss the impact of personal religion on the development of American professional morality. However, we must recognize that the much of the citizenry of the United States in its formative years were professing Christians and that their beliefs were not excluded from business and professional activities. The centrality of Christianity to some members of the legal profession during this period is, perhaps, most strongly illustrated by the oath that lawyers were required to take to become members of the Kansas territorial bar in 1855: I . . . do solemnly promise and swear (or solemnly, sincerely and truly declare and affirm,) that I will well and properly behave and demean myself in the office of Attorney for the First District Court for the First Judicial District of the territory of Kansas, in all things appertaining to the duties of such office, according to the best of my skill and judgment, and that I will support the constitution and laws of the United States and of said territory. I believe in the divinity of the Christian religion....43 It is, perhaps, too late for the legal profession to go back to this other tradition, steeped in morality and religious obligation that I have discussed here today. It is, perhaps, also a given that the “morals of the marketplace� have not only conquered the world of hedge funds, real estate moguls, and large corporations, but, in such a world, it is no longer possible for a lawyer to act as a gatekeeper. All that I suspect is true and that the nineteenth century traditions both in business ethics and legal ethics are now in decline among the vast body of lawyers and business people. But, there will always be some of us who mourn for these earlier traditions and the ethical standards that they embrace. I am one of those people. n

About the Author M.H. Hoeflich, John H. & John M. Kane Distinguished Professor of Law, University of Kansas School of Law. A version of this essay was delivered as a lecture at the Kansas Legal Revitalization Conference sponsored the U.S. District Court for the District of Kansas in February 2017. hoeflich@ku.edu

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on the christian origins of American legal ethics

1. Professor of Law, University of Kansas. A version of this article was delivered as a lecture at the Kansas Legal Revitalization Conference sponsored the U.S. District Court for the District of Kansas in February 2017.

2. On the ABA Code, see, S. D. Carle, “Lawyer’s Duty to Do Justice: A New Look at the History of the 1908 Canons, “Law & Social Inquiry, v. 24, p.1; on the Alabama Code of 1887, see, C. Andrews, P. Pruitt, Jr., and D. Durham, Gilded Age Legal Ethics (2003).

3. D, Hoffman, A Course of Legal Study (1817; 2nd edition 1836): G. Sharswood, An Essay on Professional Ethics (1856); see, also, G. Sharswood, A Compend of Lectures on the Aims and Duties of the profession of Law (1856).

4. T. Shaffer, On Being a Christian and a Lawyer: Law for the Innocent (1981); T. Shaffer, Faith and the professions (1987); T. Shaffer & R. Cochran, Lawyers, Clients, and Moral Responsibility (2009).

See, also D. Mellinkoff, The Conscience of a Lawyer (1973) who briefly mentions Dymond and Gisborne at 250-251.

5. M.H.Hoeflich, “Legal Ethics in the Nineteenth Century: the Other Tradition,” U. Kan. L. Rev. v. 47, p. 793 (1998-1999).

6. See, p. 51, infra.

7. American Tract Society, “Rules for Christian Mechanics, Merchants, &c.” online at http://tinyletter.com/rebeccaonion/letters/imust-not-feel-above-my-business 8. See, L. Friedman, History of American Law (2nd ed. 1985), pp.303ff.

9. See, M.H. Hoeflich, The Gladsome Light of Jurisprudence.

Learning the Law in England and the United States in the Eighteenth and Nineteenth Centuries (1988). Introduction.

10. Indeed, a number of states, such as Massachusetts, did not abolish Christianity as the state religion until well into the nineteenth century.

11. See, Hoeflich, “Legal Ethics in the Nineteenth Century,” passim 12. G. Abend, The Moral Background. An Inquiry into the History of Business Ethics (2014).

13. On the popular distrust of lawyers in the antebellum period, see, M. Bloomfield, American Lawyers in a Changing Society (1976).

14. Abend, Moral Background, pp. 120-136.

15. “Mercantile Character,” Hunt’s Merchant’s Magazine, v. 3 (1840). This is an account and reprint of a speech given by John Sergeant, a Philadelphia lawyer, before the Philadelphia Mercantile Library Company.

16. “Mercantile Character,” p. 15.

17. See, Hoeflich, “Ethics,” n. 11, supra.

18. Chief among these has been the late Professor Monroe Freedman, see, eg., M. Freedman & A. Smith, Understanding Lawyers’ Ethics (5th ed., 2016).

19. On Dr. Johnson’s views of the law and lawyer [Johnson himself was trained as a lawyer] see, A. Huguenard, “Dr. Johnson on the Law and Lawyers,” Notre Dame L. Rev., v. 8 (1933), p. 195.

20. See, Hoeflich, “Ethics.”

21. See, C. W. Dymond, Memoir, Letters and Poems of Jonathan Dymond (1911); Mellinkoff, n. 4, supra.

22. J. Dymond, Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).

23. On the significance of multiple reprinting, see, M.H. Hoeflich, Legal Publishing in Antebellum America (2010).

24. Dymond, Essays, p. 154.

25. Id., p. 156.

26. Id., p. 156.

27. Id., p. 157.

28. See, above, all the brilliant book by the late Robert Cover, Justice Accused. Antislavery and the Judicial Process (1975).

29. See, G. Verplanck, An Essay on the Doctrine of Contracts (1825).

30. There is no full biography of Gisborne; see, R. Hole, “Thomas Gisborne,” Oxford Dictionary of National Biography, s.v. “Gisborne."

31. Id. 32. T. Gisborne, An Enquiry Into the Duties of Men in the Higher and Middle Classes of Society (1794).

33. Id., p. 334.

34. Id., p. 334.

35. Although there were some small differences between their views; see, Mellinkoff, n.4, supra, at 251.

36. T. Gisborne, p. 347, n. (c).

37. John Todd, “The Lawyer’s First Case,” Graham’s Magazine, v.

34 (1849), pp. 85-89.

38. Rebecca Lathrop Hill, Grandmother’s Scrap-Book; or, Western Gleaner (1858), pp. 79-88 under the title “The Young Lawyer’s First Case.”

39. Todd, “First Case,” p. 73.

40. Id. 41. Id., p. 76.

42. Id., p. 77.

43. H. Niles Moore, Early History of Leavenworth City and County (1906), pp. 244-245.

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appellate decisions

Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org

Supreme Court ATTORNEY DISCIPLINE TWO-YEAR SUSPENSION, STAYED AFTER 6 MONTHS, 2 YEARS' SUPERVISED PROBATION IN RE JOHN P. BISCANIN NO. 115,002—MARCH 24, 2017

FACTS: A hearing panel determined that Biscanin violated KRPC 1.8(a) (conflict of interest), 1.15(a) (safekeeping property), and 1.15(d) (1) (preserving client funds). The violations came to light after Biscanin provided representation in an estate action. Although the client received funds, those funds were not promptly and completely deposited in Biscanin's trust account. After the matter was concluded, Biscanin borrowed from the client and used the money for a business transaction. Biscanin did not inform the client that he should seek independent counsel, and he did not seek a waiver of the conflict of interest. Biscanin also failed to make interest and principal payments when requested by the client.

HEARING PANEL: When reviewing aggravating and mitigating circumstances, the hearing panel noted that Biscanin was participating in a diversion program at the time these offenses were committed.

The hearing panel also noted that Biscanin did not cooperate during the hearing and was deceptive during testimony. The hearing panel found no mitigating circumstances. The hearing panel recommended a period of 2 years' suspension, but that after 3 months Biscanin should be placed on 2 years of supervised probation. The hearing panel approved of that plan, but recommended that Biscanin's probation plan be altered to be more detailed.

HELD: The Court determined that the hearing panel made some errors of fact relating to Biscanin's credibility. However, there was clear and convincing evidence that Biscanin violated KRPC 1.8(a). There was also clear and convincing evidence that Biscanin failed to promptly return the outstanding funds to the client when those funds were demanded. A majority of the court agreed that a 2-year suspension was appropriate, with Biscanin serving 6 months of actual suspension and then a stay of the suspension and supervised probation.

PUBLISHED CENSURE IN RE GIARDINE NO. 116,190—APRIL 7, 2017

FACTS: Giardine was accused of violating KRPC 8.2(b) (lawyer candidate for judicial office shall comply with applicable provisions of code of judicial conduct), KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and Kansas Code of Judicial Conduct Rule 4.1(A)(4) (knowingly making any false or misleading statement). While in law school, Giardine was arrested for possession of marijuana. His attorney told him that the charge had

been dismissed. However, when Giardine ran in a contested primary for a judicial position a reporter contacted Giardine to ask him about an outstanding arrest warrant. Giardine self-reported the incident to the Office of the Disciplinary Administrator and he entered a guilty plea to a lesser charge. But Giardine told the reporter that he was not the person named in the warrant. Giardine repeated this misrepresentation during a public candidate forum and again on an online message board.

HEARING PANEL: After noting Giardine's cooperation and good reputation, the hearing panel unanimously recommended that Giardine be censured. The disciplinary administrator asked for a 1-year suspension of Giardine's law license.

HELD: This case is unique because it involves both the Kansas Rules of Professional Conduct and the Kansas Code of Judicial Conduct. Both codes explicitly apply to an attorney who is a judicial candidate. The hearing panel's findings and conclusions were adopted.

A minority of the court would impose a more severe sanction, but a majority of the court agreed with the hearing panel and agreed that published censure was the appropriate discipline.

JUDICIAL DISCIPLINE HEARING PANEL AFFIRMED IN RE HENDERSON NO. 114,488 –APRIL 7, 2017

FACTS: In 2014, Henderson was found to have violated the Kansas Code of Judicial Conduct. He was suspended from the bench for 90 days. After that case had been heard but while it was still pending, additional complaints against Henderson were lodged with the Commission on Judicial Qualification. The complaints, which involved allegations that Henderson was not candid and honest in his testimony before the court, were docketed and investigated.

HEARING PANEL: The investigatory panel concluded that Henderson was neither candid not honest in his testimony. A majority of the panel recommended public censure and a 30-day suspension, with one member recommending a more severe sanction. Before the case could be heard, Henderson was defeated in his primary bid for reelection. He resigned from his position and asked the court to declare the matter moot and terminate further proceedings.

HELD: The case is not moot simply because Henderson is no longer on the bench. The duty to protect the public from malfeasance does not terminate once the judge steps down. Testimony given to the panel reinforced the earlier determination that Henderson committed misconduct and shows Henderson's lack of candor. The panel's findings are supported by clear and convincing evidence.

Cont'd on p. 59 56

The Journal of the Kansas Bar Association

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appellate decisions

CIVIL

STATUTES: Kansas Constitution Article 11, § 1(b), Article 12, § 5; K.S.A. 2016 Supp. 12-194; K.S.A. 12-140

OPEN RECORDS—STATUTORY INTERPRETATION THE SALINA JOURNAL V. BROWNBACK SHAWNEE DISTRICT COURT— REVERSED AND REMANDED NO. 115,194—APRIL 7, 2017

APPELLATE PROCEDURE—JURISDICTION IN RE CARE AND TREATMENT OF EMERSON SEDGWICK DISTRICT COURT—APPEAL DISMISSED NO. 113,503—APRIL 7, 2017

FACTS: The Salina Journal submitted a Kansas Open Records Act request to the office of Governor Sam Brownback seeking records pertaining to all those who applied for two newly created Saline County commissioner positions. The request was denied on grounds that the requested records were exempt from disclosure, and the Journal filed suit. The district court granted the request, finding that the records were not exempt as personnel records, preliminary working papers, or private.

ISSUE: Did the district court err by finding that the requested applications were not exempt from KORA HELD: It is undisputed that the records requested constituted public records that belonged to a public agency. The plain language of the personnel records exemption allows for exemption of records pertaining to officers and employees in public agencies as well as applicants for employment in those positions. There is no fundamental difference under the statute between "applicants for appointment" and "applicants for employment." The plain language of the exemption clearly does not require disclosure of the requested information.

DISSENT: (Hill, J.) It is error to equate county commissioners with employees. Those who sought appointment to the Saline county commission are not job applicants, they are candidates for office. As such, their identity is not protected under an exception to KORA. STATUTES: K.S.A. 2014 Supp. 19-203(c), 45-217(f), -217(g), -221(a)(4), -221(a)(6), -221(a)(20), -221(a)(30), 75- 4318(a); K.S.A.19-212, 45-216(a)

TAXATION HEARTLAND APARTMENT ASSOCIATION, INC. V. CITY OF MISSION, KANSAS JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS REVERSED AND REMANDED NO. 111,521—APRIL 7, 2017

FACTS: The City of Mission enacted Ordinance No. 1332, which established a Transportation Utility Fee which was levied on the owners of all developed property within the city. The TUF was based on the direct and indirect use or benefit derived from the use of public streets and sidewalks and was determined by a property's estimated "trip generation" over a period of time. Heartland Apartment Association, Inc. filed suit against the city seeking a declaratory judgment and injunctions, claiming that the TUF was an impermissible excise tax that violated K.S.A. 2016 Supp. 12-194. Individual plaintiffs also filed suit seeking a refund of TUF amounts already paid. The district court granted the city's motion for summary judgment, ruling that the TUF was not an excise tax and that it was properly created through the city's home rule authority. The Court of Appeals reversed, finding that the TUF was an excise tax that fell outside of the city's home rule capabilities. The Court of Appeals declined to address the plaintiffs' due process and equal protection arguments. The Kansas Supreme Court granted review.

ISSUES: (1) Is the TUF a tax? (2) If so, is it an impermissible excise tax?

HELD: A tax is a forced contribution to pay for government's general services, regardless of whether any particular person has paid. A fee is not a revenue measure; it is assessed against those who gain the exclusive benefit of a service. Under these parameters, the TUF is a tax. And because the TUF is a tax on real property owners' use of their property, rather than a tax on the property itself, the TUF is an impermissible excise tax.

58

The Journal of the Kansas Bar Association

FACTS: Emerson was found to be a sexually violent predator in 1999. Emerson perfected an appeal but it was dismissed after his attorney failed to file a brief. In 2014, Emerson, represented by new counsel, moved the district court to permit an out-of-time appeal of the underlying ruling that he was a sexually violent predator. After hearing testimony from Emerson, the district court ruled that it would allow Emerson to appeal based on the fact that his previous counsel failed to file a brief or communicate about the appeal's dismissal. The Court of Appeals considered the merits of Emerson's arguments but affirmed the district court. The Supreme Court granted review.

ISSUE: Does the court have jurisdiction to consider the merits of Emerson's appeal HELD: The district court lacked jurisdiction to provide any remedy to Emerson. There was a timely notice of appeal that was docketed and subsequently dismissed by the appellate court. Once that appeal was docketed, the district court lost jurisdiction over the case. And even if the district court could somehow regain jurisdiction, it did not have the authority to reverse the Court of Appeals' dismissal of the case.

STATUTES: K.S.A. 20-108, 59-29a08, 60-1501, -1507, -2106(c)

APPELLATE PROCEDURE—JUDICIAL REVIEW— UTILITIES SIERRA CLUB V. MOSIER APPEAL FROM KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT—AFFIRMED NO. 112,008—MARCH 17, 2017

FACTS: This appeal involved the issuance of a permit to build a coal-fired electric generating unit near Holcomb. A previous appeal sent the case back to the Kansas Department of Health and Environment for further fact finding. Instead of starting the permitting process from scratch, KDHE issued an Addendum to the initial permit.

Sierra Club contends not only that an entirely new permitting process was required but also that KDHE failed to incorporate certain regulations. After a public comment period, KDHE produced the Addendum to the earlier permit. Sierra Club alleges several points of error related to the Addendum and underlying permit.

ISSUES: (1) Was KDHE allowed to issue an addendum or did the remand trigger an entirely new permitting process; (2) Whether KDHE erred in setting 1-hour emission limits; (3) Whether the Addendum appropriately addressed emission limits; (4) Whether the court can consider new source performance standards HELD: This appeal was governed by the Kansas Judicial Review Act. Under federal and Kansas law, a permit must contain limitations on greenhouse gas emissions based on the application of the best available control technology only if that permit was issued after January 2, 2011. Because this permit was issued before the effective date of the regulations, KDHE was not required to add limits when issuing the Addendum. Because Sierra Club failed to challenge a stay in prior administrative proceedings, it cannot raise that issue on appeal, and the prior Kansas Supreme Court decision does not mandate a new permitting process. Instead, the scope of the remand proceedings was explicitly left to KDHE's discretion. The permit Addendum incorporated specific 1-hour emission limitations and KDHE claimed that the plant will not cause or contribute to violations of 1-hour emission standards.

There was no evidence that KDHE's public comment period violated any applicable law and KDHE clearly considered all relevant data. Sierra Club's argument about the legality of KDHE's approach here was not adequately preserved for review. Sierra Club's arguments about emission limits for hazardous air pollutants involved a moot question under existing law. Sierra Club did not raise the issue of new source

appellate decisions performance standards until its reply brief. Because new issues cannot be raised in a reply brief, the court would not consider the argument.

CONCURRENCE: (Hornbaker, J.) Because Sierra Club failed to raise issues in the proper way, the court could not consider certain substantive arguments. Were the court allowed to reach the merits of those issues, the outcome of the case might have been different.

STATUTES: 42 U.S.C. § 7412(b), -7412(d)(3), -7475(a)(2), -7475(e) (2) (2012); 42 U.S.C. § 7475(a)(3) (2006); 42 U.S.C. § 7412(h)(1); K.S.A. 2015 Supp. 20-3017, 65-3005(b)(1), -3008a, -3008b(d), 77-617, -621(a), -621(c), -621(d), -621(e); K.S.A. 77-607, -616(a)

DUE PROCESS—HABEAS CORPUS—PRISONS NORWOOD V. ROBERTS LEAVENWORTH DISTRICT COURT—AFFIRMED NO. 115,911—MARCH 17, 2017

FACTS: Norwood was found guilty of a prison disciplinary offense after an officer reported that Norwood shoved a door into the officer.

Norwood was allowed to question the officer during his disciplinary hearing. Norwood claims that his due process rights were violated because the evidence did not support the conviction and because he should have been present when the hearing officer watched a video of the incident.

ISSUES: (1) Whether some evidence supported the disciplinary conviction; (2) Whether due process required Norwood's presence when the videotape was viewed HELD: In a prison discipline context, due process is satisfied if some evidence supports the hearing officer's decision. The disciplinary report written by the officer provides that evidence. The court cannot weigh evidence or evaluate credibility. Due process did not require that Norwood be present when the videotape was played for the hearing officer.

A regulation prohibits inmates from watching such videotapes, which correlates with the facility's interest in maintaining security.

STATUTE: K.S.A.2016 Supp. 60-1501

APPELLATE PROCEDURE—SEARCH AND SEIZURE STATE V. SHARP JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND VACATED IN PART, DISTRICT COURT IS REVERSED NO. 110,845—MARCH 17, 2017

FACTS: An officer saw Sharp revving his tires while stopped for a red light. Although Sharp did not accelerate out of the intersection at an excessive rate of speed, the officer followed him and initiated a traffic stop. During the stop, the officer noticed that Sharp exhibited signs of impairment. A preliminary breath test showed that Sharp was over the legal alcohol limit. Sharp was charged with "exhibition of speed" and DUI. Sharp moved to suppress all evidence, alleging that the officer lacked reasonable suspicion to conduct the traffic stop. The motion was denied, with the district court reasoning that Sharp's display of tire revving was an announcement that Sharp intended to drag race.

Sharp was convicted as charged after a bench trial. The Court of Appeals ruled that K.S.A. 8-1565, the "exhibition of speed" statute, was unconstitutionally vague. Alternatively, the panel found that the officer lacked reasonable suspicion to conduct the traffic stop. The State's petition for review was accepted.

ISSUE: Was there reasonable suspicion for the officer to stop Sharp HELD: The statutory language "exhibition of speed or acceleration" denotes movement. There was no evidence that Sharp accelerated or moved his vehicle at the time the officer decided to initiate a stop.

There was nothing to suggest that Sharp was committing or was about to commit a crime at the time that reasonable suspicion would have been formed. Because there was no reasonable suspicion for a stop, the district court erred by denying Sharp's motion to suppress. The court needed not decide the constitutional issues raised by the Court of Appeals, and those findings were vacated.

DISSENT: (Stegall, J.) Evidence shows that Sharp altered his behavior because he saw the officer and wanted to avoid a citation. Rea

sonable suspicion cannot be lost if the suspect altered the suspicious behavior in order to avoid detection.

STATUTE: K.S.A. 8-1565

CIVIL PROCEDURE; PATERNITY STATE EX REL. SECRETARY OF DCF V. SMITH SEDGWICK DISTRICT COURT – COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED NO. 114,306 – APRIL 7, 2017

FACTS: In 2009, the Department for Children and Families filed a paternity action against Smith on behalf of a minor child. The State sought reimbursement for past support that was provided for the child, plus an order for future child support. It was not believed that Smith was actually the child's biological father. But Smith signed a voluntary acknowledgement of paternity (VAP) at the hospital shortly after the child was born. Smith answered the petition and disclaimed paternity.

He requested genetic testing and asked to have the VAP revoked, on grounds that he did not remember signing it, did not read it, and did not understand what it meant. The district court noted that the revocation petition was filed outside of the year allowed for by statute. So even though Smith did not read the form the VAP was legally binding and established Smith as the legal father. The Court of Appeals did not disagree with this holding, but found that K.S.A. 2015 Supp. 232208(a)(4) provided a mechanism for Smith to rebut the presumption of paternity by clear and convincing evidence. The Court found that Smith met this burden, and DCF's petition for review was granted.

ISSUES: (1) Was the VAP signed by Smith valid; (2) Was the VAP signed by Smith enforceable; (3) What is the effect of a VAP under these circumstances; (4) Must this case be remanded for further findings of fact HELD: There is no statutory requirement that the VAP contain a more formal acknowledgement than what was given. The legislative intent is clear from the plain language of relevant statutes. It is clear that Smith never read the VAP. But the VAP should be treated like any other contract, and in the absence of any evidence of duress, coercion, fraud, or mistake, Smith is bound by his signature on the VAP. Under a VAP, paternity is not limited to those who are, or who reasonably believe themselves to be, a biological parent. The legislature intended to impose strict limitations on those who sign a VAP in order to create a permanent father and child relationship. Smith's attempt to revoke the VAP is time-barred and he cannot attempt to collaterally attack the VAP. Since the district court adequately addressed the best interests of the child, no remand is necessary.

STATUTES: K.S.A. 2016 Supp. 23-2204, -2205, -2208, -2209(d), -2209(e), -2221, -2223, 65-2409a; K.S.A. 2015 Supp. 23-2208(a)(4); K.S.A. 53-503, -504, 59-2114

EMINENT DOMAIN; RESTRICTIVE COVENANT CREEGAN V. STATE JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS REVERSED, CASE REMANDED NO. 111,082—MARCH 24, 2017

FACTS: This case involves a Johnson County subdivision where the plots were subject to a restrictive covenant limiting development to single-family residential purposes. In 1999, the Kansas Department of Transportation purchased a large lot and used the land as a parking space for trailers. In subsequent years, KDOT constructed permanent bridges and pavements on part of the space. Plaintiffs are all property owners in the subdivision. In 2012, they filed this action for inverse condemnation. The district court granted KDOT's motion for summary judgment, holding that a taking must involve an actual taking of the real property, and that KDOT's violation of the restrictive covenants was not compensable. A majority of the Court of Appeals reversed, holding that restrictive covenants are real property interests and that damage done to those property interests requires just compensation. www.ksbar.org | May 2017 59

appellate decisions ISSUE: Does violating a restrictive covenant require compensation under the federal Constitution HELD: The restrictive covenant was a portion of the value of the land that Plaintiffs acquired when they purchased their property. The general rule is that a party can recover monetary damages for breach of a restrictive covenant. The right to avoid a taking is guaranteed by the Fifth Amendment, independent of any statutory language. It is irrelevant whether the interest is a real property interest or a contract right; the Fifth Amendment requires just compensation if the right is taken by the State. The case must be remanded to allow for a determination as to the amount of compensation due to Plaintiffs.

STATUTE: K.S.A. 2016 Supp. 26-501(b), -501(c)(2), -502, -503, -504, -505(4), -505(5), -506, -507(a), -507(b), -508, -518; K.S.A. 26502, -509, -512, -513(a), -513(b), -513(c), -513(d), -517

HELD: There was no dispute that Mera-Hernandez was otherwise qualified to receive benefits under the Act. Despite the district's argument to the contrary, specific statutes control over common law. The Act is a creature of statute that requires no resort to the common law because it is complete unto itself. The question of whether Mara-Hernandez was an employee begins and ends under the Act's provisions. A discussion of whether the employment contract might be deemed void ab initio because it was created through fraudulent inducement is not part of the Act's eligibility analysis. Mera-Hernandez met the statutory definition of "employee" and should have been awarded benefits.

STATUTE: K.S.A. 2015 Supp. 44-508(b), -556(a), 77-621(a)(1), -621(c)(7)

EMINENT DOMAIN PENER V. STATE WYANDOTTE DISTRICT COURT—AFFIRMED NO. 114,850—MARCH 24, 2017

CRIMINAL CRIMINAL PROCEDURE—JURY—STATUTES STATE V. ALLISON COWLEY DISTRICT COURT—AFFIRMED NO. 114,493—APRIL 7, 2017

FACTS: Pener is a fiduciary for two trusts. The trusts own tracts of land which were partially condemned by the Kansas Department of Transportation for highway right of way easements. KDOT offered to buy the tracts for $104,930, but the parties couldn't agree to that number. An appraiser awarded $195,500 but Pener was unsatisfied, so he sought a trial. After a bench trial, the district court awarded $295,702 and denied Pener's claim for attorney fees and expenses.

Pener appealed.

ISSUES: (1) Did the district court properly consider the cost to replace fencing; (2) was the compensation award supported by substantial evidence; (3) was Pener entitled to attorney fees HELD: Pener claimed that new fencing was required on the property's new, post-taking property line, and that it would cost $70,000.

The district court disagreed and determined that the fence's taking resulted in an $11,000 diminution in the property's value. This was appropriate under the statute, which admonishes that replacement cost can be considered to the extent it affects value. The verdict in a condemnation proceeding must be within the range of the opinion testimony admitted at trial and an award within the range offered by experts is supported by the evidence. The district court's findings were supported by substantial evidence. There was no statutory basis for awarding attorney fees to Pener and there was no basis for the award outside of statute.

STATUTES: 42 U.S.C. § 4654(c) (2012); K.S.A. 2016 Supp. 26507(b), -508(a); K.S.A. 26-509, -513(b), -513(c), -513(d), -513(e), 583502

FACTS: Allison was convicted in 1993 of first-degree premeditated murder, conspiracy to commit first-degree murder, and terroristic threat. Hard 40 sentence was imposed, consecutive to an aggregated term sentence. Convictions and sentence affirmed on direct appeal.

State v. Allison, 259 Kan. 23 (1996). In 2014, Allison filed motion to correct illegal sentence, alleging statutory noncompliance in sentencing, and error in jury instructions regarding standard of proof for finding aggravating and mitigating circumstances. District judge denied the motion, stating issues raised were not correctable under motion to correct an illegal sentence, finding no error in sentencing, and stating any error would be harmless under facts in case. Allison appealed, citing State v. Neal, 292 Kan. 625 (2011), and State v. Gilbert, 299 Kan. 797 (2014), as support for his motion to correct an illegal sentence.

ISSUE: Motion to Correct Illegal Sentence HELD: Allison’s sentence is not illegal, and his reliance on Gilbert and Neal is misplaced. To the extent his issues can be challenged under K.S.A. 22-3504(1), the prerequisites to authorize his sentence were met. The sentence conforms to the applicable statutory provision in both character and term of authorized punishment, it was imposed by a court with jurisdiction, and was not ambiguous with respect to time or manner to be served.

STATUTES: K.S.A. 22-3504(1); K.S.A. 1993 Supp. 21-4624(2), -4624(4), -4624(5), -4724(b)(2), -4724(f); K.S.A. 1992 Supp. 214624(5), -4625, -4628

STATUTORY CONSTRUCTION— WORKERS COMPENSATION MERA-HERNANDEZ V. U.S.D. 233 WORKERS COMPENSATION APPEALS BOARD— COURT OF APPEALS IS AFFIRMED NO. 112,760—MARCH 24, 2017

CRIMINAL PROCEDURE—IMMUNITY—STATUTES STATE V. EVANS JOHNSON DISTRICT COURT—AFFIRMED COURT OF APPEALS—REVERSED NO. 112,000—MARCH 10, 2017

FACTS: Mera-Hernandez was employed by the school district as a janitor. She was hired under a false name and with false identification documents. Mera-Hernandez admitted that she used the false information because she was not legally authorized to work in the United States. Mera-Hernandez was injured at work and she filed a workers compensation claim using her real name. After discovering the truth, the district fired Mera-Hernandez. The district's primary defense to this workers compensation claim is that its employment contract with Mera-Hernandez was void ab initio, meaning that no employment relationship ever existed under which there could be liability under the Workers Compensation Act. The ALJ, the Board, and the Court of Appeals rejected this argument and awarded Mera-Hernandez benefits under the Act. The district's petition for review was granted.

ISSUE: Was the district liable under the Workers Compensation Act in these circumstances 60

The Journal of the Kansas Bar Association

FACTS: State charged Evans with aggravated battery. Evans claimed he stabbed victim in self defense, and filed motion for grant of immunity under Kansas self-defense immunity statute, K.S.A. 2016 Supp.

21-5231. District court granted the motion and dismissed the charges.

State appealed. court of appeals reversed, 51 Kan.App.2d 1043 (2015), applying approach adopted by court of appeals in State v. Hardy (an approach rejected by the Kansas Supreme Court in an opinion handed down this same date). Evans’ petition for review granted.

ISSUE: Kansas self-defense immunity statute HELD: Applying analysis adopted in State v. Hardy, 305 Kan. __ (March 10, 2017), district court properly granted Evans statutory immunity pursuant to K.S.A. 2016 Supp. 21-5231. Court of appeals’ decision was reversed, district court’s grant of immunity and dismissal of charges is affirmed.

STATUTE: K.S.A. 2016 Supp. 21-5231

appellate decisions CRIMINAL PROCEDURE—IMMUNITY—STATUTES STATE V. HARDY SEDGWICK DISTRICT COURT—AFFIRMED COURT OF APPEALS—REVERSED NO. 110,982—MARCH 10, 2017

FACTS: Flores instigated fight with Hardy who then shot him. State charged Hardy with aggravated battery. Hardy claimed self defense, and filed motion for grant of immunity under the Kansas self-defense immunity statute, K.S.A. 2016 Supp. 21-5231(a). District court granted the motion, finding State failed to carry burden of showing probable cause that Hardy was not justified in his use of force. State appealed. Court of appeals reversed and remanded, holding a district court must conduct an evidentiary hearing on the motion, and must view the evidence in light most favorable to the State. 51 Kan.App.2d 296 (2015). Hardy’s petition for review granted ISSUE: Kansas self-defense immunity statute HELD: District court’s grant of immunity and dismissal of case against Hardy is affirmed. Procedural rules governing a district court’s resolution of a defendant’s claim of immunity pursuant to K.S.A. 2016 Supp. 21-5231 are addressed. Upon such a motion, district court must consider totality of the circumstances, weigh the evidence without deference to the State, and determine whether State carried its burden to establish probable cause that defendant’s use of force was not statutorily justified. That determination must be premised on stipulated facts or evidence, on evidence received at evidentiary hearing, or both.

Timing of such a hearing is left to district court’s discretion, with sen-

sitivity to fact that question of immunity should be settled as early as possible to fully vindicate the statutory guarantee. In rendering a probable cause determination, district court must consider statutory presumptions in K.S.A. 2016 Supp. 21-5224 when they are factually implicated. In this case, the district court took the correct procedural approach to resolving Hardy’s motion for immunity, substantial competent evidence supported the district court’s factual findings, and district court correctly concluded that the statutory presumption from K.S.A. 2016 Supp. 21-5224 was triggered under the facts.

STATUTES: K.S.A. 2016 Supp. 21-5221(a)(2), -5222(a), -5224, -5224(a)(1)(A), -5231, -5231(a); K.S.A. 2014 Supp. 21-5231; K.S.A. 213219, 60-402

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE—STATUTES STATE V. HOWARD JOHNSON DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 110,439—MARCH 10, 2017

FACTS: Police stopped car for traffic offenses and arrested driver (Howard) and noticeably pregnant passenger on outstanding warrants.

After observing torn plastic baggie in center console, officers searched car and found pistol concealed under floor mat. Based on Howard’s prior Missouri felony conviction, State charged him with possession of a firearm by a convicted felon, K.S.A. 2011 Supp. 21-6304(a)(2).

Howard filed motion to dismiss, arguing the the fully discharged “sus-

Appellate Practice Reminders . . .

From the Appellate Court Clerk’s Office What's in a Font? (a/k/a "What the Font!")

This month we explore font types, the recent amendments to the appellate rules regarding fonts, and why some attorneys are so protective of their fonts.

Let's first set the record straight—no one in the appellate clerk's office ever said that Times New Roman is no longer accepted. What has been articulated is that 12-point Times New Roman does not comply with Rule 6.07 (most attorneys don't realize that 12 point Times New Roman is smaller than 12 characters per inch). Whether 12 point Times New Roman was accepted in the past, regardless of the non-compliance, the rule is being enforced to assist the appellate courts, court staff, and other readers. Most fonts are acceptable as long as they comply with the rule. The appellate courts use 13-point Times New Roman.

Times New Roman was developed for newspapers, where fitting more text in a smaller space meant saving money on newsprint. And we've all seen our parents and grandparents with their magnifying glasses trying to read the newspaper.

The justices and judges of the appellate courts typically read in excess of 40 briefs for each docket and small text can be infuriating.

Rule 6.07(a)(1) now provides: "Text. Text must be printed in a conventional style font not smaller than 12 point with no more than 12 characters per inch. The suggested size and fonts include 13 point in Times New Roman, Book Antigua, Century Schoolbook and Palatino Linotype. Text, excluding pagination, must not exceed 6 ½ inches by 9 inches. All text must be double-spaced except block quotations and footnotes which may be single-spaced."

We know attorneys love their fonts! One of the public comments during the rule amendment process stated how some people hate Times New Roman and criticize it as "pedestrian and over used." Ultimately, be kind to your readers—those you are trying to persuade with your brilliant legal arguments. Wouldn't that reader be more likely to understand (and agree) with the arguments if they weren't dealing with eye strain or headaches from trying to decipher tiny print?

The new rule gives suggested alternative fonts for all those Times New Roman haters. The font can be no smaller than 12-point type and no more than 12 characters per inch. Those are the parameters; not a restriction on any particular font type.

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

www.ksbar.org | May 2017 61

appellate decisions pended imposition of sentence” (SIS) in the Missouri case was not a conviction. District court denied the motion, and denied Howard’s motion to suppress firearm evidence obtained in the warrantless search of the car. District court granted State’s motion in limine to preclude evidence regarding Howard’s purchase of the firearm. Howard entered guilty plea and appealed, claiming: (1) he was not a convicted felon because his completed Missouri SIS was not a conviction; (2) firearm evidence was obtained through illegal search of his car; and (3) district court should not have excluded evidence regarding his purchase of the firearm as this evidence would have supported mistake of fact defense. Court of appeals affirmed the conviction, holding in part the search was lawful based on probable cause plus an exigent circumstance, and that the passenger’s reclined seat added nothing to increase the probability that the vehicle contained contraband. 51 Kan.App.2d 28 (2014).

ISSUES: (1) Prior felony conviction, (2) motion to suppress—reclined car seat and probable cause, (3) motion in limine HELD: A completed Missouri SIS is a conviction for purposes of K.S.A. 2011 Supp. 21-6304(2). Inapplicable in this case and left for another day is the contention that considering a completed Missouri SIS to be a conviction results in an absurd interpretation of the statute because Kansas Legislature does not provide method by which Kansas firearms dealer must uncover whether a person has a Missouri SIS before a sale.

The search of Howard’s car was legal under the exigent circumstances plus probable cause exception. Officer made the reasonable inference that passenger was trying to hide something from officer’s view by reclining her seat. This inference, plus the officer’s experience and the clear plastic baggie with ripped corner, were enough to show a fair probability that the vehicle contained contraband or evidence of a crime.

District court did not err in excluding evidence that Howard passed a federal background check before purchasing the firearm.

CONCURRENCE and DISSENT (Rosen, J., joined by Johnson, J.): Concurred with majority’s holding on first and third issues, but would reverse and remand because there was not probable cause to search Howard’s vehicle. Agreed with panel’s conclusion that the reclined passenger seat did not add to the probable cause analysis. While appropriate for officer to infer passenger had reclined seat, it was unreasonable to definitively infer that she did so in response to officer’s pursuit. And officer’s experience and plastic baggie with a torn corner were not enough, on their own, to establish probable cause to search a vehicle.

STATUTE: K.S.A. 2011 Supp. 21-6304, -6304(a)(2)

APPEALS—CRIMINAL PROCEDURE— POSTCONVICTION REMEDIES—STATUTES STATE V. LAPOINTE JOHNSON DISTRICT COURT—APPEAL DISMISSED COURT OF APPEALS—AFFIRMED NO. 11,2019—MARCH 3, 2017

FACTS: LaPointe was convicted of aggravated robbery and aggravated assault. Seven years later he filed post-conviction motion with an equal protection claim, seeking DNA testing under K.S.A. 2015 Supp.

22-3602(b)(3) arguing the severity of his sentence made him similarly situated to criminal defendants convicted of first-degree murder or rape. District court granted the motion. Prior to any testing, State appealed upon a question reserved. While appeal remained pending, testing was conducted which excluded LaPointe from evidence recovered by the police. But district court denied LaPointe a new trial because a co-conspirator’s testimony was the main evidence against LaPointe. Court of appeals dismissed the appeal for lack of jurisdiction because no final judgment had been entered when State filed its appeal.

Review granted.

ISSUE: Appeal from order granting DNA testing HELD: Judgment of Court of Appeals is affirmed. State’s appeal is dismissed for lack of jurisdiction. Statutory provision allowing ques62

The Journal of the Kansas Bar Association

tion-reserved appeals is interpreted. State may not appeal on a question reserved. District court’s order granting DNA testing was not a final judgment because it is only a midpoint int he post-conviction DNA testing proceedings. The eventual finality of LaPointe’s postconviction DNA testing proceedings did not impact the finality of the district court’s order granting the motion for DNA testing. To allow the State’s notice of appeal to lie dormant would be inconsistent with policy against piecemeal appeals. Moreover, an order allowing postconviction DNA testing cannot be considered final for purposes of a question-reserved appeal simply because judgment of conviction and sentence has been entered in the case. Finally, State’s references to civil jurisdiction principles are not persuasive in this case.

STATUTES: K.S.A. 2015 Supp. 21-2512, -2512(a), -2512(f)(1)(A), -2512(f)(2)(A), -2512(f)(2)(B), -2512(f)(2)(B)(i)-(iv), -2512(f)(3), 223602(b), -3602(b)(3), 60-2102(a)(2); K.S.A. 20-3018(b), 22-3602(b) (3), 60-201 et seq., -1507, -2101, -2101(a), -2101(b), -2102(a)(2)

CRIMES AND PUNISHMENT—JURISDICTION STATE V. LUNDBERG AND ELZUFON SEDGWICK DISTRICT COURT— REVERSED AND REMANDED NOS 114,897 AND 114,898—MARCH 3, 2017

FACTS: Lundberg and Elzufon started businesses that were engaged in revitalization of downtown Wichita through investment in and rehabilitation of commercial real estate. State charged each with 61 counts of violating Kansas Uniform Securities Act, K.S.A. 1712a01 et seq. District court consolidated the two cases for preliminary hearing, and dismissed 56 of the counts for lack of territorial jurisdiction. State voluntarily dismissed the remaining counts and appealed.

North American Securities Administrators Association, Inc. filed an amicus curiae brief.

ISSUE: Jurisdiction HELD: Kansas securities law was discussed. District court has territorial jurisdiction pursuant to K.S.A. 17-12a610 because a portion of the securities selling process occurred in this state, and there is a sufficient territorial nexus between actions of Lundberg and Elzufon - as well as that of their limited liability companies - to support jurisdiction in Kansas. District court’s decision to dismiss these cases for lack of territorial jurisdiction was reversed. With no decision on the merits of the criminal charges, the cases were remanded to district court for reinstatement of the complaints, for completion of the preliminary hearing, and for any further proceedings.

STATUTE: K.S.A. 17-12a101 et seq., -12a102(20), -12a301, -12a501, -12a501(2), -12a501(3), -12a610, -12a610(c)

APPEALS—CRIMINAL PROCEDURE STATE V. MARTIN WYANDOTTE DISTRICT COURT—AFFIRMED NO. 114,921—APRIL 7, 2017

FACTS: Martin convicted in 1986 of first-degree felony murder, aggravated kidnapping, and unlawful possession of firearm. The sentence imposed included consecutive sentences for first-degree murder and aggravated kidnapping convictions. In direct appeal, Kansas Supreme Court rejected Martin’s double jeopardy challenge to these two convictions. State v. Martin, 241 Kan. 732 (1987). In the instant case, Martin filed motion to correct illegal sentence, arguing district judge lacked jurisdiction to impose multiple, consecutive convictions and sentences for felony murder and aggravated kidnapping. District court summarily denied the motion. Martin appealed.

ISSUE: Frivolous Appeal HELD: Court cites lack of success on same issues raised by Martin in various post-conviction proceedings, motions to correct an illegal sentence, and motions for relief under K.S.A. 60-1507. District court adequately addressed Martin’s challenge and reached the correct conclusion. Case is affirmed by summary opinion as having no apparent reversible error of law and a frivolous appeal.

STATUTE: K.S.A. 60-1507

appellate decisions CONSTITUTIONAL LAW —CRIMINAL PROCEDURE — EVIDENCE —JURY INSTRUCTIONS STATE V. MATTOX JOHNSON DISTRICT COURT —CONVICTIONS AFFIRMED, SENTENCE VACATED AND REMANDED NO. 111,162 —MARCH 10, 2017

FACTS: Mattox was convicted of premeditated murder, aggravated kidnapping, and aggravated robbery. A hard-50 sentence was imposed.

On appeal he claimed: (1) sentence was imposed in violation of Alleyne v. United States, 570 U.S. __ (2013); (2) jury instructions on aiding and abetting left jury with incomplete understanding of the law, the inference of intent instruction was misleading, and he was entitled to multiple acts instruction; (3) he was deprived right to present a defense because district court refused to accept Mattox’s no contest plea to the two lesser charges and excluded certain hearsay evidence; (4) his confession should have been suppressed because he invoked right to counsel, his Miranda waiver was not knowing and voluntary, and the confession was not voluntary because it was induced by interrogators’ promises of leniency; (5) State expert psychologist’s evaluation of Mattox without defense counsel present violated Sixth Amendment; and (6) cumulative evidence denied him a fair trial.

ISSUES: (1) Sixth amendment—sentencing, (2) jury instructions, (3) right to present a defense, (4) admissibility of confession, (5) sixth amendment—state expert’s Evaluation, (6) cumulative error HELD: State concedes Sixth Amendment violation. As in appeal by codefendant convicted in separate trial, State v. Hilt, 299 Kan. 176 (2014), district court, rather than jury, found existence of aggravating factors by a preponderance of the evidence, rather than beyond a reasonable doubt. Sentence vacated and remanded for resentencing.

No error in the aiding and abetting instructions given in this case.

Similar claim was rejected in Hilt. Intent instructions were proper and Mattox cannot make threshold showing that this is a multiple acts case.

District court could reasonably conclude that Mattox’s mental defect defense to the premeditated murder charge cast doubt on the sufficiency of the factual basis underlying Mattox’s no contest pleas. The hearsay evidence was properly excluded. The declarant was not testifying, and the contemporaneous utterance requirement for the excited utterance exception was not met.

Under facts in case, Mattox did not unequivocally invoke right to counsel, and both his Miranda waiver and his subsequent confession were knowing, intelligent, and voluntary. Concern noted that detectives feigning concern for Mattox’s only chance to tell his side of the story came perilously close to interfering with Mattox’s opportunity to clarify that he wanted a lawyer present.

An accused does not have a Sixth Amendment right to have counsel present during a psychiatric evaluation.

No error supports the cumulative error claim.

STATUTES: K.S.A. 2015 Supp. 21-6620, 22-3601(b)(3), 60460, -460(d)(2), -460(l); K.S.A. 21-3205, -3209(1), -3209(2), -3210, -3210(a), -3210(a)(4), 22-3210, -4503, 60-404

CRIMINAL PROCEDURE— LAW OF THE CASE DOCTRINE STATE V. PARRY CLAY DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 113,130—MARCH 24, 2017

FACTS: State charged Parry with felony possession of marijuana and possession of drug paraphernalia. District court granted Parry’s motion to suppress evidence obtained in warrantless search of Parry’s residence. State filed interlocutory appeal, and Court of Appeals affirmed the district court’s decision. Parry I (unpublished). State then dismissed the first case and refiled same charges in a new case. Parry again filed motion to suppress, and State advanced two new legal arguments to support the legality of the search. District court again granted Parry’s motion. State again filed an interlocutory appeal. After requesting supplemental briefing on the law of the case doctrine,

majority of Court of Appeals panel affirmed district court’s second suppression order by applying law of the case doctrine. 51 Kan.App.2d 928 (2015) (Parry II). State’s petition for review granted on (1) whether panel majority erred by addressing law of the case doctrine sua sponte, and (2) whether panel correctly applied the doctrine.

ISSUES: (1) Law of the Case Doctrine - Raised Sua Sponte, (2) law of the case doctrine - application HELD: Panel majority properly raised the law of the case doctrine’s applicability on its own initiative. The applicability of a common-law doctrine is a legal issue over which an appellate court has unlimited review; no asserted factual or procedural matters were in controversy in this case; the doctrine if applicable is dispositive of the appeal; and the parties had full and fair opportunity to address the question through supplemental briefing.

Panel majority properly applied the law of the case doctrine in this case. Application of the doctrine in various situations relevant to this appeal were noted. Parry’s second prosecution amounted to a successive stage in the same criminal prosecution in which the State had already litigated—and lost—the suppression issue. Panel majority’s invocation of the law of the case doctrine to uphold district court’s granting of Parry’s second motion to suppress was affirmed.

STATUTES: K.S.A. 2015 Supp. 21-5706(b)(3), -5709(b)(2); K.S.A. 20-108, 22-3402, 60-2101(b), -2106

CRIMINAL PROCEDURE—JURY INSTRUCTIONS—SENTENCES STATE V. RITZ SEDGWICK DISTRICT COURT—AFFIRMED NO. 112069—MARCH 3, 2017

FACTS: Ritz was charged in single information with multiple counts including felony-murder. Charges against Ritz were based on two separate instances 75 days apart in which he crashed in stolen cars after high speed attempts to evade police. Prior to trial Ritz moved to sever the crimes by date. District court denied the motion. Ritz convicted on all charges. On appeal he claims district court erred in: (1) denying motion to sever; (2) failing to instruct jury on lesser degrees of felony murder; and (3) relying on Ritz’ criminal history for sentencing.

ISSUES: (1) Motion to sever, (2) lesser included crime instructions for felony murder, (3) sentencing HELD: Under facts in this case, the two sets of crimes were “of the same or similar character” making joiner permissible under K.S.A. 22-3202, and no abuse of district court’s discretion in denying the motion to sever.

Ritz’ claim for instructions on lesser included offenses of felony murder was defeated by Kansas Supreme Court’s recent holding that there is no federal constitutional requirement to instruct juries on offenses that are not lesser included crimes of the charged crime under state law. (See State. v. Love and State v. Brown, filed January 20, 2017.)

Ritz’ Apprendi sentencing claim was defeated by State v. Ivory, 273 Kan. 44 (2002).

STATUTES: K.S.A. 2016 Supp. 21-5109(b)(1), -5402(d); K.S.A. 22-3202, -3202(1)

CRIMINAL PROCEDURE—SENTENCING STATE V. RODRIGUEZ GRANT DISTRICT COURT: AFFIRMED IN PART, SENTENCE VACATED AND REMANDED COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART NO. 110,346—MARCH 24, 2017

FACTS: Rodriguez was convicted of charges including aggravated kidnapping. Sentencing court imposed 774-month sentence based on criminal history that scored a one-person felony from aggregation of two Colorado misdemeanors for third-degree assault with one Kansas municipal conviction. Rodriguez appealed, challenging in part the sufficiency of the information which omitted the specific intent element needed for kidnapping. He also alleged error in the classification www.ksbar.org | May 2017 63

appellate decisions appellate decisions and aggregation of his two Colorado misdemeanors. Court of Appeals affirmed all convictions in an unpublished opinion, stating it was duty bound to follow State v. Hall, 246 Kan. 748 (1990), and finding evidence was sufficient for jury to convict him of aggravated kidnapping under elements instructing given to jury. Panel majority also affirmed the sentence imposed. Review granted on these two issues.

ISSUES: (1) Defective Charging Instrument, (2) aggregation of Colorado misdemeanors HELD: State v. Dunn, 304 Kan. 773 (2016), overruled Hall for analyzing defective charging instrument claims raised for first time on appeal. Applying Dunn, the allegations in the information were insufficient to charge the crime of aggravated kidnapping, but under facts in case this error did not affect Rodriguez’ substantial rights because a more carefully worded charging document would not have changed the defense.

An out-of-state misdemeanor that only requires the defendant to act with criminal negligence is not comparable to a Kansas offense that requires the defendant to act recklessly. Reliance on State v. LaGrange, 21 Kan.App.2d 477, rev. denied 258 Kan. 861 (1995), is flawed as LaGrange erred in finding Colorado’s third-degree assault comparable to Kansas’ aggravated battery. Because Kansas does not have a comparable offense, the Colorado convictions for third-degree assault should not have been used in Rodriguez’ criminal history calculation. Reversed and remanded to district court for resentencing with a correct criminal history score.

STATUTES: K.S.A. 2015 Supp. 21-5202(j), 60-261; K.S.A. 2011 Supp. 21-5408, -5408(a)(1)-(4), -5408(b), -5413(a)(1), - 6801 et seq., -6811(a), -6811(e); K.S.A. 60-2105; K.S.A. 1994 Supp. 21-3414(a)(2) (B), -4711(a), -4711(e)

CRIMINAL PROCEDURE—EVIDENCE—INVITED ERROR DOCTRINE—STATUTES STATE V. SASSER JOHNSON DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 108,149—MARCH 31, 2017

FACTS: Sasser was convicted of burglary and felony criminal damage to property. On appeal, he claimed State presented insufficient evidence to convict him of each alternative means in the burglary jury instruction. He further claimed his felony criminal damage to property conviction should be reversed because improperly admitted lay opinion testimony by Zuber regarding cost to repair victim’s motorcycle was State’s only evidence of monetary value. Court of Appeals affirmed in unpublished opinion, holding in part that Sasser invited any alternative means error by the requesting the burglary instruction prior to trial and failing to object at the instructions conference.

Sasser’s petition for review granted on: (1) the panel’s invited error holding; (2) the sufficiency of the evidence supporting each alternative means; and (3) the admission of lay opinion testimony.

ISSUES: (1) Invited error doctrine, (2) alternative means, (3) lay opinion testimony

HELD: Court of Appeals erred when it applied invited error doctrine. Under circumstances in this case, Sasser’s failure to object to jury instructions finalized at the instructions conference more closely resembled acquiescence than invitation.

Sasser’s burglary conviction is affirmed. Even if burglary instruction presented alternative means, sufficient evidence supported each means.

On record in this case, and plain language of K.S.A. 60-456(a) in effect prior to subsequent amendment of state and federal rules, district judge did not abuse his discretion in admitting lay witness’ opinion on the value of damage to victim’s motorcycle.

CONCURRENCE and DISSENT (Biles, J., joined by Rosen and Johnson, JJ.): Agrees with outcome and rationale declining to apply the invited error doctrine and affirming the burglary conviction.

Would hold, however, that trial court abused its discretion by admitting impermissible lay opinion testimony that was based on Zuber’s specialized knowledge of repair costs, rather than Zuber’s perception of damage to the motorcycle. Because remaining evidence did not support jury’s verdict that damages to the motorcycle exceeded $1000, the felony criminal damage conviction should be reversed.

STATUTES: K.S.A. 2016 Supp. 21-5415(a); K.S.A. 2011 Supp. 215813(a)(1), -5813(b)(2), -5813(b)(3); K.S.A. 60-456, -456(a), -456(b), -456(c), -456(d), -2010(b)

APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL PROCEDURE STATE V. WRIGHT SEDGWICK DISTRICT COURT—REMANDED WITH DIRECTIONS NO. 112,635—MARCH 24, 2017

FACTS: Wright was charged with first-degree premeditated murder and conspiracy to commit murder. He wrote defense counsel that he did not want any continuances accredited to the defense, and invoked right to be present at critical stages. On first set trial date (August 19, 2013), defense counsel appeared without Wright to request a continuance, which the district court granted. Following his conviction on both charges, he filed motion for new trial alleging violation of right to speedy trial and violation of right to be present. District court denied the motion without making any findings about Wright’s failure to be present on August 19. Wright appealed in part on claim that his right to be present at all critical stages of his trial was violated.

ISSUE: Appellate Review of Statutory and Constitutional Right to be Present at Critical Stages HELD: A continuance hearing is a critical stage of a criminal trial, requiring the defendant’s presence. Wright’s right to be present at all critical stages of his trial was violated. Record on appeal contained insufficient factual findings to permit appellate court to determine whether violation of Wright’s right to be present at the continuance hearing was harmless. Remand to district court was ordered to make necessary findings, with appellate jurisdiction retained.

STATUTE: K.S.A. 2012 Supp. 22-3402, -3402(a)

KANSAS COURT OF APPEALS CIVIL

CHILD SUPPORT—DIVORCE—FINDINGS OF FACT IN RE MARRIAGE OF BRIN SALINE DISTRICT COURT— AFFIRMED NO. 114,746—MARCH 6, 2017

FACTS: The Brins were divorced in August 2007. After a change in circumstances, the parties reached an agreement covering parenting 64

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time, child support, and the division of child-related expenses. Several years later, Kristina filed a motion to modify. She was satisfied with the parenting-time arrangement, but claimed Mark was not paying certain childcare expenses. She also asked the court to clarify which parent was responsible for certain expenses related to extracurricular activities. The district court increased Mark's child support obligation, declined to make a parenting time adjustment or to calculate support based on equal parenting time, and ordered the parties to share equally

appellate decisions appellate decisions the school tuition. Kristina was ordered to pay the children's fees and expenses for extracurricular activities and other out-of-pocket expenses. Mark appealed.

ISSUE: Whether the district court was required to calculate child support based on a shared custody determination or grant him a parenting time adjustment HELD: When calculating parenting time, the district court properly considered that non-waking hours count as parenting time. Under this appropriate calculation, Mark only had the children for 30% of their non-school time. Mark's request for a cost adjustment was based on the amount of time he had with the children and not on added expenses that he actually incurred.

STATUTE: None

STATUTORY CONSTRUCTION—TAX APPEALS IN RE TAX APPEAL OF REEVE CATTLE CO. BOARD OF TAX APPEALS—AFFIRMED NO. 116,005—MARCH 17, 2017

FACTS: Reeve Cattle owns several mixer-feeder trucks, which are used to mix feed ingredients and then haul the feed to cattle within the feedlot. The trucks are limited as to how quickly they can drive, and they are wider than technically allowed on a public roadway. In 2015, the county appraiser assessed a property tax penalty on Reeve Cattle for failing to pay taxes on its mixer-feeder trucks for the 2013 and 2014 tax years. Reeve Cattle paid the penalty under protest, claiming that the mixer-feeder trucks were exempt from taxation under the farm machinery and equipment exemption. Before BOTA, Reeve Cattle argued that the mixer-feeder trucks were not "trucks" but were rather "implements of husbandry." BOTA agreed, finding that the mixerfeeder trucks did not meet the definition of "truck." The county appealed.

ISSUE: Whether mixer-feeder trucks are exempt farm equipment or a vehicle subject to property taxation HELD: A mixer-feeder truck does not meet the statutory definition of truck. The vehicles are rarely driven off of the feedlot and do not carry more than 10 passengers. Because they are not trucks, BOTA correctly found that the property is exempt from taxation as farm machinery and equipment.

STATUTES: K.S.A. 2015 SUPP. 8-126(L), -(P)(5), -126(DD), -126(LL), -126(NN), 77-621, 79-201J

CRIMINAL: SENTENCING—STATUTORY INTERPRETATION STATE V. POWELL SEDGWICK DISTRICT COURT—SENTENCE VACATED, CASE REMANDED NO. 115,457—MARCH 17, 2017 FACTS: Powell pled guilty to aggravated indecent liberties with a child under the age of 14. Before sentencing, Powell moved for a downward durational departure from the presumptive 25-year sentence, seeking a shorter prison term. After considering the evidence,

the district court concluded there were no substantial and compelling reasons to depart from the hard 25 sentence. When imposing that sentence, the district court also ordered Powell to have no contact with the victim or with another witness who testified at the hearing. Powell appeals, arguing that the district court's denial of his departure motion was an abuse of discretion.

ISSUES: (1) Did substantial and compelling reasons warrant a departure sentence; (2) Did the imposition of a no-contact order combined with a hard 25 prison term render Powell's sentence illegal HELD: Sentencing courts must follow a two-step process when evaluating a defendant's motion for departure. The record on appeal in this case does not definitely disclose whether the district court properly considered Powell's claimed mitigating circumstances without weighing them against the State's aggravating circumstances. Because that analysis is missing, the case must be remanded for resentencing. A sentencing court may not impose a no-contact order in combination with a prison sentence. The State conceded the error. The no-contact order was vacated.

DISSENT: (Malone, J.) The district court properly considered all presented evidence and properly sentenced Powell in accordance with established procedure. The Kansas Supreme Court case which establishes the procedure – State v. Jolly – is difficult to apply.

STATUTES: K.S.A. 2016 Supp. 21-6604, -6627, -6627(a), -6627(d)(1), K.S.A. 22-3504 CRIMES AND PUNISHMENT— SENTENCING—STATUTES STATE V. STANLEY JOHNSON DISTRICT COURT—SENTENCE VACATED AND REMANDED NO. 112828—APRIL 1, 2016 (UNPUBLISHED) PUBLISHED OPINION FILED MARCH 1, 2017

FACTS: Stanley was convicted of felony driving under the influence (DUI). He filed motion to exclude his prior Missouri conviction for driving while intoxicated (DWI) from his criminal history, claiming the Missouri DWI statute was not substantially similar to the Kansas DUI statute. District court denied the motion. Stanley appealed on this sentencing claim.

ISSUE: Out-of-state conviction as a prior conviction HELD: Stanley’s Missouri DWI conviction should not have been considered as part of his criminal history under K.S.A. 2012 Supp.

8-1567(i). The Kansas statute specifically requires that the influence of alcohol must be to a degree that renders the driver incapable of safely driving a vehicle (or the driver has a blood- or breath-alcohol concentration of .08 or more). That requirement is more stringent than the Missouri requirement of intoxication that in any manner impairs the ability of a person to operate an automobile. A driving impairment may not necessarily render a person incapable of safely driving a vehicle, thus it is clearly conceivable that an act that would be considered DWI in Missouri would not be DUI in Kansas.

STATUTES: K.S.A. 2012 Supp. 8-1567(a), -1567(a)(1), -1567(a) (3), -1567(b), -1567(b)(1)(D), -1567(i), -1567(i)(1), -1567(i)(3); K.S.A. 8-1567

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