April 2018 Journal

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

Etched in Digital Stone: Nonconsensual Por-

nography in Kansas and a Web That Never Forgets

Christopher Teters P 40

KBA Day at the Capitol: An Opportunity for

Direct Advocacy with Members of the Kansas Legislature

Hon. Chief Justice Lawton R. Nuss P 31

40 | Etched in Digital Stone: Nonconsensual Pornography in Kansas

and a Web That Never Forgets

Christopher Teters

31 | Direct Advocacy: KBA Day at the Capitol

Chief Justice of the Kansas Supreme Court Lawton R. Nuss

Cover design by Ryan Purcell

6 | KBA Elections About Your Candidates in Contested Races

25 | State of the Judiciary ......Chief Justice of the Kansas Supreme Court Lawton Nuss

17 | Math and the Law Series:

36 | Outstanding Speakers Recognition

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

Regular Features 11 | KBA President

title............................................... Gregory P. Goheen

13 | KBF President

Managing Cumulative Stress in Your Profession

.............................................. Hon. Evelyn Z. Wilson

15 | YLS President

The Importance of Sleep..................... Clayton Kerbs

20 | Law Practice Management Tips & Tricks

Cheap and Easily Manipulated Video ............................................... Larry N. Zimmerman

24 | Spring 2018 CLE Schedule 34 | Diversity Corner

37 | Substance and Style . ........................................ Joyce R. Rosenberg 56 58 60 69

| Members in the News | Obituaries | Appellate Decisions | Appellate Practice Reminders

A Picture is Worth a Thousand Words: Recent Amendments to Supreme Court Rule 3.07 ...................................................... Douglas T. Shima

72 | Classified Advertisements

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

www.ksbar.org | April 2018 3

THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION 2017-18

Journal Board of Editors Emily Grant, chair, emily.grant@washburn.edu 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 Terri Savely, savelyt@kscourts.org 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 and staff liaison, pvanslyke@ksbar.org Catherine A. Walter, cwalter@topeka.org Meg Wickham, dir. of communications and member svcs., mwickham@ksbar.org Issaku Yamaashi, iyamaashi@foulston.com Natalie Yoza, yozan@kscourts.org 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 editor@ksbar.org.

Ryan Purcell, graphic designer, rpurcell@ksbar.org 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.

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association.

Copyright Š 2017 Kansas Bar Association, Topeka, Kan.

For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org.

Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.

4

The Journal of the Kansas Bar Association

Let your VOICE 2017-18 be Heard!

KBA Officers & Board of Governors President Gregory P. Goheen, ggoheen@mvplaw.com President-elect Bruce W. Kent, bruce.w.kent@gmail.com Vice President Mira Mdivani, mmdivani@uslegalimmigration.com Secretary-Treasurer Charles E. Branson, cbranson@douglas-county.com Immediate Past President Steve N. Six, six@stuevesiegel.com Young Lawyers Section President Clayton Kerbs, ckerbs@kerbslaw.com District 1 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 Angela M. Meyer, Angela-meyer@att.net District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Cheryl L. Whelan, cheryl.whelan@ag.ks.gov Vincent Cox, vcox@cavlem.com District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Sylvia B. Penner, spenner@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org District 8 Gaye B. Tibbets, tibbets@hitefanning.com District 9 Aaron L. Kite, aaron@rbr3.com District 10 Gregory A. Schwartz, greg@splaw.legal District 11 Mark Dupree, Mark.lawdupree@gmail.com District 12 Bruce A. Ney, bruce.ney@att.com Nancy Gonzalez, nancy.gonzalez@ssa.gov Alexander P. Aguilera, alex@sbhlaw.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. Michael F. Powers, mpowers@8thjd.com KBA Delegate to ABA Rachael K. Pirner, rkpirner@twgfirm.com Hon. Christel E. Marquardt, christel.marquardt@yahoo.com ABA State Delegate Linda S. Parks, parks@hitefanning.com ABA YLD Delegate Joslyn Kusiak, jkusiak@kellykusiaklaw.com Executive Director Jordan Yochim, jeyochim@ksbar.org

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.

W O N R E T S I !

G e m RE o Welc

s t n e d u t S w a L

KBA Golf Tournament

Sycamore Ridge Golf Course

Enjoy a round of golf and networking with Kansas attorneys.

Thursday, June 14 th 9:00 a.m.

10:00 a.m.

Registration & practice range open Shotgun start

The tournament will feature several traditional proximity prizes, including men’s & women’s longest drive, closest to the pin and longest putt. There will also be a “Holein-One” prize on a par 3,TBD. Registration is $100, which includes lunch at the turn and two drink tickets. You have the option to purchase the golf “extra” package onsite. It includes four (4) mulligans, a 6’ foot string and the Gary Woodland Drive (hole TBD) on a par 5.

For more information please contact: Joe Molina at 785-234-5696 or jmolina@ksbar.org *The tournament is open to those accepted to law school for 2018-19, those currently in law school, as well as practicing and retired attorneys/judges.

www.ksbar.org | April 2018 5

KBA Elections

Introducing the Candidates in Contested Races Secretary/Treasurer Nancy Morales Gonzalez is a lifelong Kansan and has been a Kansas lawyer for 16 years.

She has served on the Kansas Bar Association Board of Governors for the past 9 years. She received her undergraduate degree from the University of Kansas, and her Juris Doctorate from the University of Missouri-Kansas City, where she was the managing editor of a national law journal, among other awards and endeavors. Nancy began her legal career as a judicial law clerk at the U.S. District Court for the Western District of Missouri, before joining a national law firm. In a year’s sabbatical from the firm, she served as a judicial law clerk at U.S. Court of Appeals for the Eighth Circuit. Nancy transitioned from the firm in 2008 to enter into government service. She presently is a senior attorney representing the federal government in national litigation. In addition to her legal practice, Nancy holds leadership positions in many civic and professional organizations. She aspires to serve the lawyers of Kansas as the Secretary-Treasurer of the Kansas Bar Association. n Cheryl Whelan: Since 2012, I have had the pleasure of serving as the District Three Governor on the Kansas Bar Association (KBA) Board of Governors (BOG). For the last year, I also served on the BOG Executive Committee. With this experience, I am very aware of the challenges facing the KBA on a variety of issues including membership and finances. The KBA must address these challenges in order to remain a relevant and vibrant organization. With my second term on the BOG soon ending, I am running for the KBA Secretary-Treasurer so that I may utilize my experience and knowledge of the KBA to continue working on these issues.

For over 25 years I have been very involved with the KBA at the committee and section level. I am a long-term member of the Government Law Section, and a past president as well as a past secretary-treasurer of the section. I currently serve on the Board of Publishers, the Golf Tournament Planning Committee, the Law Related Education Committee, the MediaBar Committee and the Nominating Committee. In the past, I served on the Commission on Professionalism, the Annual Meeting Analysis Task Force and the Annual Meeting Planning Committee for the 2014 Annual Meeting.

I also am involved in other professional and civic organizations including the Topeka Bar Association, the Women Attorneys Association of Topeka, the Kansas Women Attorneys Association and Sertoma. I am a past board member of the American Red Cross of the Capital Area.

Currently, I am an Assistant Attorney General and the Director of Open Government Training and Compliance in the Office of Kansas Attorney General Derek Schmidt. Additionally, I am a Judge Advocate in the Army Reserve, and was awarded the Bronze Star for a combat deployment in Iraq. After 21 years of service, I am retiring from the Army Reserve this spring. I previously served as the General Counsel for the Kansas State Department of Education and have many years of experience as an attorney with various governmental agencies including the United States Army, the State Fire Marshal’s Office, the Shawnee County District Attorney’s Office, and the Kansas Court of Appeals.

I earned both my Juris Doctor and Masters of Public Administration from the University of Kansas. My undergraduate degrees in political science and communication studies are from Washburn University. n 6

The Journal of the Kansas Bar Association

kba elections

KBA Delegate to the ABA House of Delegates Natalie Haag: Kansas is the best place in the country to practice law. The lawyers in our state are great advocates for their clients, for fair and impartial courts and for integrity in the legal community. I hope to represent this great group of lawyers as the KBA Delegate to the ABA House.

My 32 years of legal experience includes civil and criminal litigation, administrative law and corporate law, and I’ve practiced in law firms, at the State of Kansas and in both public and private corporations. Over the last 21 years, I’ve worked as General Counsel and Chief of Staff to Governor Graves, Director of Governmental Affairs for Security Benefit Corporation and General Counsel for Capitol Federal® Savings Bank. In these positions, I’ve worked extensively with legislative bodies, which has allowed me to develop and hone my lobbying skills. As your delegate, I would enjoy putting these skills to work by advocating for your positions at the ABA. Practicing law in Arkansas City, Wichita and Topeka, I’ve met attorneys from across the state in a wide variety of practices. While serving on the KBA Board of Governors, as the President of the KBA, and on various KBA committees, including the Legislative Committee (former chair), 2020 Diversity Committee, and CLE Committee, I’ve had the opportunity to travel all over Kansas and learn about the issues that matter to our entire legal community. During my terms as KBA President-Elect and President, I also represented our state at ABA meetings, where I gained a deeper understanding of the value this organization brings to our profession. My prior experience with the ABA, combined with my knowledge of what’s important to Kansas lawyers, will help me to give valuable input to the ABA House on the policies that govern the practice of law.

As your ABA delegate, I would be happy to have the opportunity to continue and expand my service to the bar. I have demonstrated my long-term commitment to our legal community through committee and board service as a member of the KBA, Topeka Bar Association, Women Attorneys Association of Topeka and Kansas Women Attorneys Association. This commitment is also reflected in my service as the Second Congressional District Representative on the Supreme Court Nominating Commission, which has allowed me to work with dedicated lawyers from across the state to select qualified candidates for our judiciary.

In addition, I have the pleasure of serving my alma mater as a member of the Washburn University School of Law Business and Transactional Law Center Board of Advisors. It has been a great honor to be recognized for my professional service with the 2008 Kansas Bar Association Outstanding Service Award, 2013 Topeka Bar Association Newton Vickers Professionalism Award and the 2016 Washburn University School of Law Alumni Fellow.

My position as General Counsel of Capitol Federal® Savings Bank, while busy, allows me the flexibility to commit to studying the issues and attending the ABA and KBA meetings required to fulfill the obligations of this position. It would be my pleasure to represent the great lawyers of Kansas and advocate for your positions at the ABA. I request your vote for the position of KBA Delegate to the ABA House. n

www.ksbar.org | April 2018 7

kba elections

KBA Delegate to the ABA House of Delegates (cont'd from previous page) Eric Rosenblad: I have been a practicing member of the Kansas Bar since 1982 and have directed the Southeast Kansas Legal Services program since 1984. Let me share my thoughts about this election.

The work of the Kansas Bar Association and the American Bar Association has never been more important. We strive to preserve the rule of law, to maintain fair and impartial Courts, to provide vital public education on legal issues, to improve the law and resist improvident reactionary proposals, and to constantly improve our member’s ability to provide high quality, effective service to our clients. As a member of the KBA Board of Governors I have appreciated the opportunity to work on these issues.

As a Fellow and Trustee of the Kansas Bar Foundation I have been impressed by the important work our members support. The Foundation provides crucial financial support to law related charities to meet critical needs. The educational projects supported by the Foundation improve understanding and respect for the law. I am pleased to be a part of supporting this work.

Kansas lawyers understand that the privilege of practicing law comes with some duties.

Our training and experience has given us valuable leadership skills that are needed in our local communities. Like many of you, I have regularly volunteered my time to many civic, charitable and religious organizations, serving on boards, giving advice and counsel, and sometimes rolled up my sleeves for a good cause.

This is my vision for our profession and the values I would hold as your representative to the ABA House of Delegates. If you share this vision, I will welcome your support. n Christi Bright: I am a graduate of the University of Kansas School of Law and have been representing clients in various areas of the law throughout the states of Kansas and Missouri for over 20 years. I am grateful to have built, alongside my husband, a very successful and prominent family law practice in Overland Park Kansas. Throughout my practice, I have dedicated a great amount of my time and efforts in serving on numerous boards, commissions, committees and task forces within the state and local bar associations. In addition to serving as one of the District 1 Board of Governors, I am also the President Elect for KBA’s Family Law Section and am past co-chair of the Diversity committee. I also serve as the Board liaison to the KBF Board of Trustee’s. Locally, I serve on the family law bench bar committee for the Johnson County Bar Association where we recently modified and updated local guidelines that are used and referenced all over the state by Judges and practitioners alike. We also prepare and present continuing legal education to other practitioners on relevant and current issues that are facing our profession. In addition to my service to my local and state bar associations, I also serve the ABA as a presidential appointment on the Commission for Youth at Risk. I serve in so many professional capacities because I believe that our bar is only as strong as the service that we individually provide back to it.

Throughout my career, I have clerked for the Honorable W. Stephen Nixon, a Circuit Court Judge in Jackson County Missouri and given several lectures throughout Kansas and Missouri, including for continuing legal education credits, on the topics of probate, employment and housing discrimination and diversity. When I am not working, I am a passionate tennis player with a growing ambition for golf. I most enjoy spending time outdoors with my family. Most people have heard me say that I am tropical and love most things outdoors, including gardening, but this Kansas weather sends me into a light depression every winter.

On weekends, I can be found serving in my church as a children’s church teacher or working at one of the local outreach centers helping meet the needs of the homeless or disadvantaged.

I dreamed of being at attorney when I was 8 but I never could have imagined that God would take that dream and fulfill so many others through the life that I am so richly blessed to live! I can’t help but wake up each day and be thankful and ask how can I help someone else be better today! n 8

The Journal of the Kansas Bar Association

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

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

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

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

www.ksbar.org | April 2018 9

e h t e v a

S

e t Da

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

10

The Journal of the Kansas Bar Association

kba president

A Retrospective....

by Greg Goheen

F

ifty years ago, in April of 1968, I was born into what many consider to be one of the most turbulent years of the 20th century. Because this year presents a bit of a milestone, it provides an opportunity to look back and reflect on the events that took place that year and how they continue to shape our society a half century later. Following a year that had witnessed both the Summer of Love and numerous race riots throughout our nation, 1968 began on an optimistic note with the January 5 selection of Alexander Dubček as the leader of the Communist Party in Czechoslovakia which ushered in a political liberalization movement now known as the Prague Spring. This note, like so many others, would later fall silent in August of 1968 when, in the largest military operation in Europe since the end of World War II, 750,000 Warsaw Pact troops including 6,500 tanks and 800 planes invaded Czechoslovakia.

On January 19, 1968, Dr. Martin Luther King Jr. gave his last speech to a university which happened to be at Kansas State University. His speech, titled “The Future of Integration,” was delivered as part of the all-University Convocation and was attended by over 7,000 people at Ahearn Field House. Less than three months later, on April 4, Dr. King was shot and killed at the Lorraine Motel in Memphis, Tenn. His legacy continues to inspire some 50 years later.

Somewhat eerily, U.S. presidential candidate Robert F. Kennedy would later give a speech titled “Conflict in Vietnam and at Home” at Kansas State University on the morning of March 18 as part of the then relatively new Landon Lecture Series on Public Issues. (Senator Kennedy gave a second speech at the University of Kansas that afternoon.) Like Dr. King, Senator Kennedy would lose his life to an assassin’s bullet less than three months later on June 5 at the Ambassador Hotel in Los Angeles, Calif.

The subject of Sen. Kennedy’s speech, the Vietnam War, was at the forefront of the minds of most Americans during 1968. On Jan. 30, Viet Cong forces launched a series of surprise attacks across South Vietnam in a campaign known as the Tet Offensive; it began on the Tet holiday (the Vietnamese New Year) and caused a significant change in how the American people viewed the war in Vietnam and how they viewed themselves as a nation.

As with life today, not every event in 1968 was necessarily historic or tragic. In 1968, the Federal Hourly Minimum Wage was $1.60 an hour. Today it is $7.25 an hour. A movie ticket in 1968 cost $1.50 while my ticket to “Avengers: Infinity War” cost $14.22. The average cost of a new car in 1968 was $2,822.00 and a gallon of gasoline cost only 34 cents. Average annual income was around $7,850.00 with the cost of a new house averaging around $14,950.00. The 1968 year-end Dow Jones Industrial Average was 943 while today it hovers over 24,000. The Standard & Poor’s 500 index closed above 100 for the first time on June 4, 1968, at 100.38. Today it sits at over 2,700. The current rate of inflation for the United States is around 2.2% whereas it was 4.57% in 1968.

Television shows Batman and the Andy Griffith Show came to an end in 1968. Rowan & Martin’s Laugh-In, Hawaii Five0 and 60 Minutes debuted. Sixty Minutes remains on the air today while Hawaii Five-0 has returned to television. On the big screen, the 40th Academy Awards, originally scheduled to be held on April 8, 1968, were postponed to April 10, 1968, because of the assassination of Dr. King. “In the Heat of the Night” won best picture, beating out “Guess Who’s Coming to Dinner,” “The Graduate,” “Bonnie and Clyde” “and "Doctor Dolittle."

It was a year without baseball in Kansas City as the A’s had left for Oakland following the 1967 season, and although

www.ksbar.org | April 2018 11

kba president

the Royals were created as an expansion team on January 11, 1968, they would not begin play until the 1969 season. In college basketball, Kansas State University won the Big 8 and represented the conference in the NCAA Tournament which was won that year by UCLA over North Carolina. Kansas University, runner-up in the Big 8, went to the NIT where it lost in the championship game to Dayton. Washburn University’s basketball team posted an 8-0 conference record. On the gridiron, the University of Kansas football team lead by running back John Riggins was co-Champion with the University of Oklahoma of the Big 8 in the Fall of 1968 though it lost in the 1969 Orange Bowl to Penn State University. At Washburn, the 1968 team is credited as the team that helped save Ichabod football. Internationally, 1968 saw both a Winter Olympics in Grenoble, France, and a Summer Olympics in Mexico City, Mexico, as well as the first International Special Olympics Summer Games which was held at Soldier Field in Chicago, Illinois, with about 1,000 athletes participating.

Foreshadowing today’s athletic protests, during the summer Olympics, U.S. Olympians Tommie Smith and John Carlos who won gold and bronze respectively in the 200-meter sprint, raised black-gloved fists during the medal ceremony.

The music charts in 1968 were topped by hits such as “Hey Jude” by the Beatles, “The Weight” by the Band, “Wichita Lineman” by Glen Campbell, “I Heard It Through the Grapevine” by Marvin Gaye and “Mama Cried” by Merle Haggard.

Elvis with his televised special, and Johnny Cash with his live album at Folsom Prison, both revived their careers. Of note, the 1968 prison population was 188,000 and the incarceration rate the lowest since the late 1920's. Incarceration rates and prison populations have increased dramatically since that time but recent years have witness a reversal of that long term trend.

Nineteen sixty-eight was an active year for the legal profession. On April 3, 1968, the United States Supreme Court heard arguments in Green v. County School Board, 391 U.S. 430 (1968), a school desegregation case wherein the Court held that the Fourteenth Amendment required action to remedy past racial discrimination—or what has come to be called affirmative action – based on an "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." The United States Supreme Court would also render another seminal educational decision in Epperson v. Arkansas, 393 U.S. 97 (1968), where it invalidated an Arkansas statute that prohibited the teaching of human evolution in the public schools by holding that the Establishment Clause of First Amendment to the United States Constitution prohibits a state from requiring, in the words of the majority opinion, "that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma."

On April 11—my birthday—United States President Lyndon B. Johnson signed into law the Civil Rights Act of 1968, 12

The Journal of the Kansas Bar Association

which addressed discrimination in housing and is commonly referred to as the Fair Housing Act. This Act is generally regarded as the final great legislative achievement of the civil rights era.

In 1968, the Kansas legislature established a citizen's committee to study and propose amendments to the constitution which would later result in a 124-page report to the legislature in February of 1969. Among the significant recommended changes in Article 3 was the creation of "a unified court with overall administrative and procedural rule-making powers in the supreme court branch thereof." Report of the Citizens' Committee on Constitutional Revision, p. 43 (Feb. 1969).

The committee's commentary on the proposed changes revealed that the purposes behind amending Article 3, section 1, included the "[p]roper supervision, administration and discipline of judicial personnel" and "steadfast recognition of and insistence upon vigilant maintenance of the doctrine of separation of powers—with the three branches of government free from encroachments of each other." The report added that a proposed constitutional amendment unifying the court system "would create a unified court with overall administrative authority in the supreme court branch thereof and would vest the supreme court with rule making power regarding process, practice, and procedure at all levels of the unified court, as well as regarding appeals. Such rule making power is, in reality, an inherent power of the judiciary." Report of the Citizens' Committee, p. 43. These recommendations would eventually result in amendment to Article 3, § 1, of the Kansas Constitution, ratified in 1972 by the voters of the state of Kansas.

In the 1968 presidential election, Richard Nixon won, beating both Hubert Humphrey and George Wallace. Pres. Nixon carried every Kansas county except Wyandotte. In that same November election, Bob Dole was elected to his first term as United States Senator.

The year 1968 ended as it began—on an optimistic note— with the astronauts on Apollo 8 entering orbit around the moon on December 24. This year, 2018, is far from over and, like 1968, has seen its share of tragedies and triumphs. Towards the end of the year, the first commercial manned space flights are scheduled to take place, allowing us to again marvel at our potential to overcome adversity and accomplish incredible achievements in our next 50 years. n About the Author Gregory P. Goheen is a shareholder at McAnany, Van Cleave & Phillips, P.A., where he has practiced since graduating from Southern Methodist University’s Dedman School of Law in 1993. He received his bachelor’s degree in 1990 from the University of Kansas. Greg is past President of the Kansas Association of School Attorneys and Fellow and past Trustee of the Kansas Bar Foundation.

kbf president

Managing Cumulative Stress in Your Profession

by Hon. Evelyn Z. Wilson

I

t's good to have a friend who also happens to be a clinical therapist. During the course of conversations about such things as family and good places to eat in New Orleans, she asked me a question about how I deal with cumulative stress.

Huh? I'm fine. What do you mean - cumulative stress?

Apparently the stresses we experience during the course of our lifetimes have a cumulative effect, much like certain spices can heat up your food during the course of a meal. So, her question focused on me and how I deal - personally - with the cumulative stress I must be experiencing.

Our brains are remarkable. They can stretch, and adapt, and learn. But you can't make them forget. You can compartmentalize, such as when you don't think about your birthday for months, but when someone asks you when your birthday is, you can remember. That ability to compartmentalize keeps you from dealing with a tsunami of data all the time.

Because of her question, I focused on some of the stresses I have had.

As a judge, my number one hard thing was listening to evidence of child pornography. Looking at it was the secondhardest thing, but listening to the screams of a toddler was worse. I think about that sometimes, because you sure can't forget it.

More on the hit parade (as a judge and/or an attorney): litigant parents who hate each other so much they don't see what's happening to their children - things I see and listen to, but cannot fix; so many phone calls and emails to answer

that sometimes they get dropped; billable hours; unreasonable demands; unfair accusations. And then there are the personal stressors, such as the death of a nephew who was a pediatrician, when cancer got him at age 29; the dementia and death of my dad two years ago...or was it three; my husband's surgery; my stupid ankle sprain; and certainly other things lurking around in compartments I'll just leave alone for now.

Anyway, I guess when I think about it....

I'm not special. My stresses are not special. I know you've all had them, too.

If you've stayed with me until now, please do yourself a favor and think about the effect cumulative stress is having on you. Don't ignore it. Cut yourself some slack and recognize that we live and work in the middle of a pressure cooker. Cut your colleagues some slack, too.

Then do some things to help yourself. Take a break. Set parameters with your clients and co-workers. Take your vacations. Don't work all the time. Stop. Say no. Let people help you. Go outside. Laugh.

By the way, I know a good therapist.

Be well. Be happy. n About the Author Hon. Evelyn Z. Wilson is Chief Judge of Kansas’ Third Judicial District (Shawnee County). Before taking the bench in 2004, she practiced law for 19 years—seven years in northwest Kansas and 12 years in Topeka. Judge Wilson graduated from Bethany College and Washburn Law School.

www.ksbar.org | April 2018 13

CALLING ALL

VENDORS, SPONSORS AND ADVERTISERS!!

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

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

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

Contact

yls president

The Importance of Sleep

by Clayton Kerbs

“

I’ll sleep when I’m dead.” According to Matthew Walker, PhD, in his new book Why We Sleep (Scribner, 2017) if we do not get sufficient sleep now, we will bring that familiar refrain to reality sooner rather than later. The consensus is that adults need to get at least seven hours of sleep per night.1 Why do we sleep? What happens to our bodies when we do not get sufficient sleep? What can we do to improve our quantity of sleep?

Scientists have discovered a revolutionary new treatment that makes you live longer. It enhances your memory and makes you more creative. It makes you look more attractive. It keeps you slim and lowers food cravings. It protects you from cancer and dementia. It wards off colds and the flu. It lowers your risk of heart attacks and stroke, not to mention diabetes. You’ll even feel happier, less depressed, and less anxious. Are you interested?2

You have probably guessed the above is talking about sleep, and you would be correct. No caveman diet required, just sufficient sleep. Sleep is not the absence of wakefulness, it is “exquisitely complex, metabolically active, and deliberately ordered series of unique stages.”3 The potential health benefits4 are plentiful and should be enough for those of us that are sleep-deprived to make meaningful changes.

Sufficient sleep improves our memory and enhances our ability to learn and store information. Almost 2,000 years ago, Roman rhetorician Quintillian noted the positive effect sufficient sleep has on memory. And here we are, 2,000 years later, sacrificing sufficient sleep in order to watch “The Walking Dead” or Instagram stories! We know this to be true for our children, and we make it a priority for them to get enough sleep so that they may be more successful in the classroom.

Why do we not make it a priority for ourselves as adults?

Wouldn’t it help you remember those great one-liners you had planned for cross-examination the next day? www.ksbar.org | April 2018 15

yls president

Studies have also shown the positive impact sufficient sleep has on physical health, such as quicker recovery for stroke victims.5 If we do not get sufficient sleep, the impacts can be devastating. It can lead to fatigue that rivals being legally intoxicated.6 In the United States, there is one motor vehicle accident per hour that is from fatigue-related error.7 Those of us who represent municipal clients should pay particular attention to this, because we often drive home late at night after a full day’s work. One study showed that getting six hours of sleep for ten days straight is the equivalent level of sleep deprivation to that of a person that has stayed awake for twenty-four straight hours.8 Continued sleep deprivation can also be linked to numerous neurological disorders, such as Alzheimer’s, anxiety, depression, bipolar disorder, suicide, and stroke.9 Physiological diseases and disorders are also associated with sleep deprivation. Those include cancer, diabetes, heart attacks, infertility, weight gain, and immune deficiency.10 I think we all can relate to the fact that sleep deprivation can lead to increased mood swings and a lack of control over our emotions.11 Knowing all the benefits of sleep, why do we not get sufficient sleep? I think this is a personal and subjective question because everyone may have different reasons, and sleep deprivation may be just during a season of life. For me, I have a child younger than a year old, and I have a child that has Type 1 diabetes. The baby phase is a seasonal stage of sleep depriva1. Luisa Bazan, M.D., Sleep and Your Health, American Bar Association (2017) https://www.americanbar.org/groups/young_lawyers/publ cations/tyl/topics/work-life/sleep-and-your-health.html.

2. Matthew Walker, Why We Sleep, Scribner 2017.

3. Id. at 108.

4. Id. 109-131.

5. Id. at 131.

6. Id. at 130.

7. Id. at 140.

8. Id. at 132.

9. Id. at 132.

10. Id. at 132.

11. Id. at 146.

12. Id., 27-30.

13. Id. at 325.

16

The Journal of the Kansas Bar Association

tion for me while the older child with Type 1 is not. Type 1 requires attention twenty-four hours per day, so it is a little more concerning than my own personal health.

Career demands, excessive caffeine and using electronics prior to sleeping can all lead to sleep deprivation. Caffeine has a half-life of five to seven hours, so it still may be present in brain tissue five to seven hours after it is consumed.12 We feel sleepy when our adenosine levels increase, usually about twelve to sixteen hours after we wake up. Caffeine works by blocking adenosine receptors, masking our need for sleep.

However, adenosine continues to be produced and builds up until the caffeine is gone from our system. This can lead to a crash and overwhelming sleepy feeling. Limiting our caffeine intake can lead to more sufficient sleep.

It is not realistic to remove electronics from our daily routine; that genie is out of the bottle. Dr. Walker’s hope is that we can incorporate technology in the bedroom that leads to individualized sleep tracking and the ability to change room conditions to produce a good sleeping environment. He also notes harmful blue light from LED bulbs can be replaced by warmer yellow light.13 In the end, we each can take steps to get more sufficient sleep. The CEO of Aetna went as far as providing bonuses to employees that could present verified sleep-tracker data that showed they were getting sufficient sleep. Maybe present that one at the next office meeting! n About the Author Clayton Kerbs currently practices in his hometown of Dodge City with his father, Glenn.

Clayton’s practice consists of domestic and municipal law cases. He attended Creighton University and Washburn University School of Law. Prior to practicing law, Clayton worked for U.S. Senator Jerry Moran. Clayton is married to Leah; they have two sons, Porter and Chandler. ckerbs@kerbslaw.com

math and the law—journal series

Math and the Law: A 2018 Journal Series

Using Math to Determine How Best to Pay for Long Term Care

by Jenny Walters

I

do not have a math gene. Despite this, I was able to survive geometry, trigonometry and algebra classes through high school and college with the help of teachers and classmates. I even made it through most of my pre-veterinary classes in college, including dreaded university chemistry labs.

Then came plane trigonometry. If the purpose of that class was to weed people out, it worked. I had to find another profession that might support my horse habit, so law school it was. So, in a way, I really did go to law school so I did not have to do math. I never would have guessed I would use math on a daily basis in my profession—and even enjoy it.

I enjoy using math daily because it gives a clear answer.

While there may be some grey areas interpreting and arguing over the law itself, once the law is applied to the numbers,

there is only one answer. I also enjoy using math because it provides much of what I believe we all love—facts.

Our firm helps people find ways to pay for long term care.

On the surface, this is relatively simple – you determine how much the individual’s income is and how much the long term care expenses are. Sometimes, there is enough income to pay for care. However, with nursing home costs reaching $6,000 in our area (which is on the low end), it is common for the people we meet to not have near enough income to cover their nursing home care. Paying out-of-pocket drains modest resources very quickly and can leave a spouse at home impoverished. This is where we get to apply the law to the numbers and provide a solution. www.ksbar.org | April 2018 17

math and the law—journal series

There are several ways for an individual to pay for long term care, including their own resources, long term care insurance, veteran’s pension benefits, and Medicaid. I am going to focus on the math we use to assist someone in need of Medicaid benefits. Many of our clients are surprised to hear that there is much more involved than just spending all of their money down to $2,000.

The requirements to qualify for Medicaid in Kansas are contained in the Kansas Economic and Employment Services Manual (KEESM). The KEESM is full of opportunities to use math to help our clients, be they single, married, young, or old. Really, our clients’ situations read like word problems, and the KEESM provides the keys to solving those problems.

Let me go through some examples. Each step can lead down rabbit holes in the law, but I will stick to a broad overview. I will go through the calculations for a single person and a married couple. In addition, I will explain the issues that gifting presents and situations where annuities are a useful tool.

Single Person To be eligible for Medicaid to help cover long term care costs, a person must meet an asset requirement, an income requirement, and a care needs requirement. The care needs requirement is determined by an assessment at the nursing home.1 The general asset requirement is that an applicant must have countable resources below $2,000 in order to qualify for Medicaid.2 To meet the income requirement, the income needs to be below the cost of care.

The first step to determine if someone meets the asset requirement is to gather information for all of the resources and determine what is exempt and what is countable. An exempt resource is one that is not counted as an asset and does not 18

The Journal of the Kansas Bar Association

have to be spent down, for example the homestead and one vehicle.3 Only the countable resources must be spent down to $2,000 (or less). These countable resources include assets like bank accounts, investments, cash value of life insurance, and retirement accounts. Completing the spend-down may be as simple as purchasing things the individual needs, like home improvements, a new vehicle, and a funeral plan. It can also involve complex calculations where assets are gifted for preservation.

To meet the income requirements, the individual’s income, or more specifically, the patient obligation, must be below the Medicaid rate at the nursing home. The patient obligation is the amount the individual is required to pay to the nursing home while on Medicaid.4 The patient obligation is calculated by taking the individual’s income and subtracting allowed deductions, such as supplemental insurance premiums, excess Medicare Part D premiums, and a $62 personal needs allowance.5,6 If the resulting number is less than the monthly Medicaid rate at the facility, then the income requirement is met. The Medicaid rates can vary between nursing homes across the state, with examples from $153 to $242 per day.

Married Couple As I mentioned, a spouse entering long term care could easily impoverish the spouse living at home. In this example, the husband needs long term care and the wife is at home.

The couple is allowed to have a resource assessment done to establish the amount of countable resources that the wife can have in her name at the time the husband applies for Medicaid, with the resource assessment based on the value of their resources as of the date the husband entered the hospital or long term care and had a stay of 30 consecutive days or longer.7 We call this the “snapshot date.” The effect is that if the couple had been spending resources on care since that time, the resource assessment will go back to when their resources were higher.

Much like the single person, to determine if the asset requirement is met, we gather documentation and values for all of those resources and determine what resources are countable and what resources are exempt. The exempt resources, such as the home, vehicle, and funeral plans are taken out of the equation. The remaining countable resources are added together and divided in half. If the wife’s one-half is less than $24,180, then the wife is allowed to keep $24,180, which is the minimum.8 If the wife’s one-half is over $120,900, then the wife is limited to that amount, which is the maximum.9 The husband is limited to countable resources of $2,000 or less. Any

math and the law—journal series

additional resources over the limits have to be spent down before the husband will qualify for Medicaid. The spend-down can be completed by paying the nursing home, purchasing an exempt item like a vehicle, making home improvements, and paying debt. It may also involve purchasing an annuity, which I will explain below.

Even if the assets are divided and spend-down requirements are met, there are still the income requirements. In order for the husband to qualify for Medicaid, his income must be below the Medicaid rate at the facility. The patient obligation is calculated similarly to the single person, except an allocation to the wife, if any, also needs to be subtracted out.

In another effort to prevent the spouse at home from becoming impoverished, there is a minimum monthly maintenance needs allowance (MMMNA) the wife may be entitled to. If the wife’s income, minus some allowed deductions, is less than $2,030, then she is entitled to as much of the husband’s income that is needed to bring her income up to $2,030.10 This could present a situation where the husband’s income appears to be above the Medicaid rate; however, when the wife’s MMMNA is deducted, it brings the husband’s income back below the Medicaid rate.

Gifting Gifting presents a special set of circumstances. If a person applying for Medicaid or their spouse has gifted property away in the five years before applying for Medicaid, a penalty will be imposed.11 More specifically, any gifts over $50 a month in any one month over those five years can cause all gifts from the last five years to be added up to determine the amount of the penalty.12 A penalty essentially means a period of time that Medicaid will not pay benefits. This can be detrimental to a client, and we must carefully calculate how much gifting there has been and how long the penalty will last.

The penalty is calculated by taking the total value of property gifted in that five years and dividing it by $197.88.13 The result is the number of days the penalty will last. The penalty does not start until that person is “otherwise eligible” for Medicaid, meaning but for the gifting, the person would be eligible.14 That means we have to go through all the above calculations to determine if the other eligibility requirements are met.

Ultimately, we have to determine whether we should attempt to “cure” the gift and have the gift returned (if that is even possible), go ahead and apply for Medicaid to get the penalty period started, or wait until the 5-year window has closed on the gift.

Annuities Annuities are one of the more valuable tools we have in Medicaid planning. More specifically, a Medicaid-qualified

annuity is only counted as income and is not a countable resource.15 In the married couple scenario, an annuity could be used to convert the money that needs to be spent down into an income stream for the wife. For a healthy spouse with limited resources, an annuity can ensure they have the income to live at home as long as possible.

Annuities can also be used to lessen the impact of gifting. As I mentioned, a penalty does not start until someone is otherwise eligible. If we know there are gifts that cannot be cured, an annuity might be used to create income to pay for care during that penalty period.

When using annuities in either situation, we crunch the numbers relating to how much will go into the annuity, how much the monthly income will be, and how that additional income will factor into the calculations described above.

Due to my math gene limitations, I must always have a calculator handy; however, it is both challenging and satisfying to help a client navigate the options and find a solution to pay for long term care. Sometimes that involves paying privately, and sometimes that involves going through all the calculations required to reach Medicaid qualification. However, if plane trigonometry is ever involved, I will be looking for referrals. n About the Author Jenny Walters is a partner at Clinkscales Elder Law Practice, P.A. in Hays. She has practiced there since graduating from Washburn University School of Law in 2009.

Jenny received her bachelor’s degree in 2006 from Fort Hays State University. She is a member of the National Academy of Elder Law Attorneys. Jenny is married to Steven and they have a son, Theron.

1. KEESM §8114 2. Id. §5130 3. Id. §5340 and §5520 4. Id. §8170 5. Id. §8172.1 6. Id. §8160(3) 7. Id. §8144 8. Id. §8144.1 9. Id. §8144.1 10. Id. §8144.2 11. Id. §5724 12. Id. §6410 (27) 13. Id. §5724.4 14. Id. §5724.5 15. Id. §5722

www.ksbar.org | April 2018 19

law practice management tips and tricks

What happens when anyone can make it appear as if anything has happened, regardless of whether or not it did?

– Technologist, Aviv Ovadya

Cheap and Easily Manipulated Video

by Larry Zimmerman

Expensive and Specialized

Cheap and Easy

he 1994 movie Forrest Gump won an Oscar for best visual effects recognizing the film’s computer graphics trickery that stitched Tom Hanks into archival video of John F. Kennedy, Lyndon Johnson, and Richard Nixon.

George Lucas’s powerhouse visual effects company, Industrial Light & Magic, mastered several different technological processes and harnessed considerable computing power to render the scenes. Some worried at the time about potential dangers of the power to manipulate shared history; but most were cautiously dismissive, understanding the skill, money, and time required to achieve comparable results.

An anonymous user on Reddit, a hugely popular internet forum, reignited the conversation with a post in late 2016.

Motherboard, an online magazine, bumped into a Reddit user, deepfakes, sharing his video face-swapping hobby. He replaced one actor’s face in a video with another actor’s face.

Within weeks, another Reddit user released FakeApp software to make face-swapping simple for anyone regardless of skill or equipment. An entire Reddit forum with over 15,000 members popped up to swap tips and manipulated videos. One particularly impressive face-swap recreated the CGI appearance of Princess Leia in the 2016 Star Wars film, Rogue One.

T 20

The Journal of the Kansas Bar Association

law practice management tips and tricks

The cheap, easy, and quick version from FakeApp was virtually indistinguishable from the high-budget, professionally produced effect.

Involuntary Porn “AI-assisted porn is here and we’re all f*****,” wrote Samantha Cole for Motherboard. It should not be surprising that the deepfakes hobby and immediate use of FakeApp was to create pornography. Specifically, celebrity porn made by faceswapping actors like Daisy Ridley from Star Wars, Gal Godot from Wonder Woman, and Emma Watson from Harry Potter with porn performers. The resulting face-swap porn videos and dozens of others were quickly shared and spread on platforms like Reddit, Twitter, and PornHub. Once the alarm bells were sounded, reaction to “involuntary porn” was relatively quick. By the end of February, the face-swapping forum on Reddit was shut down, Twitter and other platforms erected algorithmic blockades to faceswap video and even PornHub banned the category and began scouring archives to remove offending videos. Everyone seemed to realize quickly what porn performer, Grace Evangeline, voiced, “One important thing that always needs to happen is consent. Consent in private life as well as consent on film. Creating fake sex scenes of celebrities takes away their consent. It’s wrong.”

The Common Victim The impact of face-swap porn is just starting to filter out of the celebrity realms as individuals learn to use FakeApp software themselves or search out those online willing to create video on commission. Ordinary people have already been face-swapped into videos for humorous or prank purposes and there is no reason to believe that abusers, harassers, stalkers, and blackmailers will not soon be face-swapping victims into compromising video as part of their arsenal. The time and cost involved to embarrass an ex-spouse with a realisticlooking fake porn video is trivial.

One problem observed by lawyers consulted for this article is that it is the porn performer whose body appears nude in face-swapped video – not the victim whose face is superimposed.

The situation has been addressed for children. In the same House Bill 2501, child pornography sections defined “sexually explicit conduct” as including either actual or simulated conduct. Further, “visual depiction” includes computer-generated images. The drafting anticipated and prohibited faceswapping porn involving children. Those consulted indicate expanding such protections to adults would likely address “involuntary porn” that face-swapping software makes so simple to create.

One lawyer consulted suggested that existing K.S.A. 216103 regarding criminal false communication might address face-swapping porn. The statute prohibits communicating to any person information known to be false that exposes another to public ridicule or which deprives the victim of social acceptance. The bar appears higher than the prohibitions in the child and revenge pornography statutes. Lawyers working with victims of face-swapping, involuntary porn might find it worth investigating.

Lawyers Beware Far beyond the confines of fake pornography, the democratization of this sort of technology adds new hurdles lawyers must understand. Altering a grainy security video, tweaking the faces in video of a crowd of witnesses, changing the driver of a car from a dash cam video – it all becomes possible with a little bit of knowledge or the willingness to pay $50 to commission a face-swap online. Part of what happens when it can be made to appear as if anything has happened is that lawyers apply our tools to ferret out fact from fiction to protect victims, punish offenders, and protect the public. n

Revenge Porn Law It is not clear that there are many tools in our Kansas criminal code to address such conduct. The conversation around this type of “involuntary porn” in the media has classified it as a type of revenge porn—something Kansas addressed in House Bill 2501 that became law in July, 2016. House Bill 2501 amended K.S.A. 21-6101 to include as breach of privacy the following: disseminating any videotape, photograph, film or image of another identifiable person 18 years of age or older who is nude or engaged in sexual activities and under circumstances in which such identifiable person had a reasonable expectation of privacy….

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

www.ksbar.org | April 2018 21

KBA LIBRARY

Don’t leave the office without it!

All KBA Handbooks are now available as eBooks through Casemaker!

22

Visit https://go.ksbar.org/CasemakerLibra for more information.

The Journal of the Kansas Bar Association

www.thebarplan.com WE OFFER:

LAWYERS’ PROFESSIONAL LIABILITY INSURANCE COURT BONDS BUSINESS OWNER’S POLICY WORKERS’ COMPENSATION RISK MANAGEMENT SERVICES

Bob Murray Regional Sales Manager

2018 FAMILY

LAW CLE

YEARS YOUNG Award-winning tax software and customer service.

• • • • •

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

®

Professional Tax Solutions | Since 1977

Toll-Free 800.890.9500 DrakeSoftwareSales.com

April 20, 2018

Double Tree by Hilton, Lawrence www.ksbar.org | April 2018 23

Spring CLEs Live CLE:

People in Crisis: An Interactive Program April 13, 2018 The Oread 1200 Oread Avenue Lawrence, KS 66044 Registration is limited. KBA Members, KWAA Members and KU Law Alums/Students are given preference in registration.

2018 Brown Bag Ethics Series: Communication, Competence & Confidentiality April 18, 2018 Robert L. Gernon Law Center 1200 SW Harrison Topeka, KS 2018 Family Law April 20, 2018 DoubleTree by Hilton 200 McDonald Drive Lawrence, KS 2018 Administrative & Government Law CLE April 20, 2018 Robert L. Gernon Law Center 1200 SW Harrison Topeka, KS 2018 Bankruptcy & Insolvency Law CLE April 27, 2018 The Wichita Boathouse 515 S. Wichita Street Wichita, KS 67202 2018 Midwest Intellectual Property Institute May 4, 2018 Sprint Corporation 6050 Sprint Parkway Overland Park, KS

Webinars:

Internet for Lawyers Webinar: Moving Your Practice Into the CloudBenefits and Drawbacks April 6, 2018 (Noon-1:00 PM) Mesa CLE Webinar: From Competence to Excellence April 23, 2018 (Noon-1:00 PM) Internet for Lawyers Webinar: Me Too: Sexism, Bias and Sexual Misconduct in the Legal Profession April 27, 2018 (Noon-1:00 PM) Mesa CLE Webinar: The 2018 Ethy Awards April 28, 2018 (10:00 AM-12:00 PM) Internet for Lawyers Webinar: The Case for Practice ManagementWhy Outlook Isn’t Enough May 3, 2018 (Noon-1:00 PM)

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

S

peaker Ryckman, President Wagle, distinguished members of the House and Senate, honored guests, and my fellow Kansans.

On January 29th, Kansas Day, I will start the 9th year of my privilege of serving in the capacity of chief justice of the Supreme Court. I thank Speaker Ryckman for generously offering me this fourth opportunity during that time to speak to you about Kansas courts. And I thank President Wagle for graciously agreeing to the scheduling of this event. Mr. Speaker, I also thank you for inviting my judicial colleagues: the justices on the Supreme Court and the judges on the Court of Appeals.

Many years ago when I was in the Marines, the Navy carried us all over the Pacific. On every ship, announcements were made over the intercom system called the "IMC." Announcements began with "Now hear this. Now hear this."

The ultimate announcement said that too. But it was followed by, "This is the captain speaking." And sailors and Marines alike dropped whatever they were doing and paid strict attention – because the captain was the ultimate authority on the ship – in all matters. In fact, one I knew displayed a brass plaque that said, "I am the captain of this ship and I will do as I damn well please."

The people of Kansas, in their constitution, wisely decided that no single person would be completely in charge of their ship of state – in all matters. So they separated the powers – and created three equal branches of government. This means that even though at this moment I might say "Now hear this, now hear this, this is the chief justice speaking" – you are not obligated to drop what you are doing, nor obligated to pay strict attention, nor even pay any attention. But if you care about justice in Kansas like our founders did, and I hope you do, then I would ask you to grant me your attention for a few minutes.

Someone once said: I . . . believe that the Federal Government has an obligation to enforce the constitutional rights of even the least individual among us, wherever he may be, if those rights are being denied, and to do so at the point of bayonet if necessary.

Chief Justice Lawton R. Nuss Now, what wild eyed, left-leaning Hollywood celebrity said that? It was a Hollywood actor all right: named Ronald Reagan at his 1982 presidential news conference. And Reagan said it repeatedly during his presidency.

Perhaps you were surprised to hear President Reagan speak so passionately about government enforcing constitutional rights at the point of a bayonet. After all, he was a proud champion of reducing what he considered governmental "interference" in people's lives. But Reagan recognized a few things in life were essential. Because as governor of California he also had said, [A]t any level of government I have always subscribed to a belief that protecting the rights of even the least individual among us – is basically the only excuse the government has for even existing.

Fortunately, we rarely have to resort to bayonets. Instead, constitutional rights are enforced, and protected – for even the lowest person among us – in the Kansas court system as administered by our approximately 1,600 employees and 260 judges spread across 105 counties. Some of those employees and judges are with us this afternoon in the gallery behind you. Those in robes are some of the chief judges from around the state who are responsible for the legal proceedings in our 31 judicial districts. They appear here today at their own expense. I will ask all judicial branch personnel there to stand. www.ksbar.org | April 2018 25

state of the judiciary

Please join me in thanking them for their service to our great state.

Now let me share with you some of the things Kansas judges and court employees have been doing.

eCourt and e-filing: I will start by updating you on our electronic (or eCourt) project which I first talked about in my speech here in 2011.

One part of that project is electronic filing (or e-filing). As you know, this enables legal documents to be filed with the courts electronically. After years of work, implementation of an e-filing system has been completed for all state courts – in 105 counties and in both the appellate courts. By June, no state court will any longer accept paper filings by attorneys.

Completion of this big project was made possible because the 2014 legislature earmarked some docket fee revenues for the project for several years. I join many Kansans in thanking you for those important appropriations. It means that nearly 4 1/2 million court documents have been filed – without people having to travel to the courthouses or put them in the mail.

I mentioned in past years that the long-term eCourt plan has been for e-filing to eventually be integrated with an electronic case management system different from the ones presently used by court personnel in processing cases. These two components of eCourt allow us to shift from a paper-based system to one that will provide judges, court staff, and attorneys with immediate, statewide access to case information, details, and records provided by the Kansas courts.

Just a few examples of the benefits that eCourt will provide: • Improve case processing in the courts.

• Increase the efficiency of information delivery to all judges.

• Increase operational efficiency by automating certain activities and streamlining others.

• Maintain and improve data sharing between various governmental and public entities.

• Enable our employees in any county courthouse to work from their computers on court business for other counties. This alone is a big benefit because it allows the Supreme Court to more effectively and efficiently manage the state's court system.

Eventually, eCourt will also provide the public with statewide 24-hour access to some of the most frequently requested court information – from any computer with an internet connection.

Three years ago the eCourt steering committee began to review exactly how to change from different computer systems in the courts to one centralized case management system. The committee also looked to standardize the various practices currently performed throughout all the state courts.

26

The Journal of the Kansas Bar Association

Their long study for the right vendor is now complete. And I am pleased to report that during the last 30 days, a contract was signed with Tyler Technologies of Plano, Texas. The $11.5 million in the contract also comes from docket fees earmarked by the 2014 legislature for this purpose. Tyler has worked well with statewide judicial systems in 13 other states; they were our committee's clear choice.

We anticipate that the statewide eCourt project will be completed within about four years. That day will bring even more uniformity and efficiency to the entire court system to benefit Kansans – one of the greatest achievements since court unification in the 1970's.

In the meantime, we have been expanding our use of existing technology in other areas and embraced the efficiencies it produces.

Videoconferencing: In most of our 31 judicial districts, after arrest, a criminal defendant's first appearance before a judge in the courtroom is conducted by camera from the jail. This saves the time and cost of transporting the hundreds, if not thousands, of defendants to the courtroom and back. Many districts also use videoconferencing for similar proceedings: juvenile detention, mental illness hearings, criminal arraignments, or testimony of expert witnesses or KBI lab personnel, all with a view toward savings.

Our court of appeals and Office of Judicial Administration both use videoconferencing for certain activities instead of requiring attorneys and others to sustain the expense of coming to Topeka. OJA uses it for training court personnel across the state; the Court of Appeals for oral arguments on some cases.

As for the Supreme Court, we recently obtained video capability in our Topeka conference room. I had the privilege of being the system's first user. In November, at the invitation of Major General Vic Braden of the 35th Infantry Division, I presented a legal education program for him and the lawyers under his command. By the way, they were in Kuwait at the time. Because of the eight-hour time difference, I had to get up at what the military calls O Dark Thirty. I thank them for their service to us all—7,000 miles from home.

Personnel Efficiencies: The judicial branch has also looked at personnel efficiencies.

Our weighted caseload study several years ago allowed us to accurately determine, by actual workloads, how many judges and court clerks were needed and where they were needed in the state. Because the study excluded the 700 employees not working directly in the offices of the clerks of the court, in 2016 we conducted a "position inventory" to address them.

These assessments, which are continually updated, help us determine needed personnel levels on an ongoing basis. It also

state of the judiciary

allows us to consider the impact of recent advancements in technology on those staffing needs. We are currently working with the National Center for State Courts to perform a workload study of our more than 300 Court Services Officers (also known as CSOs). Essentially, they supervise offenders on probation.

These studies and our increased use of technology have indeed been valuable tools in modernizing court operations.

That in turn benefits the Kansans we all serve.

But as I mentioned from this podium last March, while we are gaining efficiency through them, we are also continuing to lose efficiency – through increased turnover of highly experienced judges and employees. Besides retirement, these losses are primarily because of low compensation. For the same reason, we often have had real trouble finding suitable replacements in many courthouses.

• As you may recall, using a grant, in 2016 we hired the experts from the National Center for State Courts to study the compensation earned by our (1) court employees and (2) district magistrate judges. They looked at compensation levels of these folks in other state court systems, and in comparable positions in local government and private business.

• After you authorized judicial branch personnel a 2.5 percent pay increase last session, for which I publicly thank you, the National Center then updated its findings and conclusions. Among other things, it considered recent increases in employee compensation in the sources it examined last year, such as other states' court systems.

A founding father of our country, Alexander Hamilton, has often been attributed with saying, "The first duty of society is justice." Seemingly at odds with Hamilton's view is the fact that even with last session's 2.5 percent increase: • Nearly 1/3 of all the employee positions in our justice system still have starting salaries below the 2017 federal poverty level – for a family of four; • And the fact that every Kansas judicial branch job classification is still below market pay rate, some by as much as 21%.

• Standing in the gallery now is Ms. Penny Timmons, (trial court clerk IV) who represents those of our employees who are paid 20.4 percent below market. And Ms. Karen Hughes, (word processing tech) who represents our employees paid below the federal poverty level I mentioned.

Thomas Jefferson was a great rival of Hamilton's among the founding fathers. Because like Reagan, President Jefferson believed in smaller government. Even so, Jefferson also believed that, "The most sacred of the duties of a government [is] to do equal and impartial justice to all its citizens." I hope you can

appreciate that this most sacred duty of government becomes more difficult to perform when approximately 700 of our justice system's 1,600 employees (44 percent) are still paid about 16.5 percent below market. This includes many court services officers, who each year supervise 18,000 convicted criminals on probation, including approximately 3,000 sex offenders.

And we can only wonder what Jefferson might have to say about our ability to perform this most sacred duty – when told that nearly one-third of our employees also need to work jobs outside the Judicial Branch to make ends meet. This is five times higher than the Kansas average.

• Now standing in the gallery is Mr. Brad Schuh, (a CSO I) who represents the 700 employees paid 16.5 percent below market. And also Ms. Miranda Cummings (managing court reporter) who represents the approximate 500 employees having to work at least one other job to make ends meet.

Let's fast forward from Hamilton and President Jefferson to yet another president, Andrew Jackson – who is considered by many historians to be a great champion of the people. Jackson said, All the rights secured to the citizens under the Constitution are worth nothing . . . except guaranteed to them by an independent and virtuous Judiciary.

So let's look at our judiciary. Among the things the compensation study revealed are that even after last year's 2.5 percent increase: • Over 21 percent is still needed to raise district magistrate judge salaries to market level.

• And more than one-fourth of our magistrate judges who responded to the survey have indicated they are seeking employment outside the judicial branch. The number one reason given? Compensation.

The people's champion, Andrew Jackson, was not alone in his beliefs. An Atchison businessman named Robert Graham was a delegate at the Wyandotte Convention in 1859 – which was established to create a constitution so Kansas could be admitted as the 34th state. Graham told his fellow delegates, [E]verything should be done for the purpose of calling to the bench the best legal talent in the country. As a safeguard to the interests of the people, this is of more importance than anything else that will come before us.

This sentiment was echoed by other delegates.

It is a matter of public record, however, that even after last session's increase, today Kansas district judges (the trial judges in your communities), still rank next to last in the nation for what they get paid. Kansas is only ahead of New Mexico.

Last year from this podium I said it is human nature for people to devote their time and money to those things that are www.ksbar.org | April 2018 27

state of the judiciary

most valuable to them. So after recalling these statements of the founders of this country and our state, all Kansans again may want to ask themselves: what value do we place today on the administration of justice in our state? Some may respond that although the national center's work does provide objective market data based on various sources, it has no bearing on the real world in Kansas. So allow me to share our judicial branch reality.

Actual numbers establish that because of low pay, we are losing more and more good, experienced people in our branch of government. And actual numbers show it also is hard to recruit suitable replacements. First, according to the Bureau of Labor Statistics, the current average turnover rate nationally is 3.2 percent. Ours in the judicial branch? Almost five times as high: 15 percent.

Second, we have also seen a large drop in the number of qualified applicants for our positions. Let me provide some examples.

Trial Court Clerk II Positions (entry level) In 2017, the 19th Judicial District (Winfield and Arkansas City) had 11 applicants for two positions. Five of them eventually withdrew, either because they could not take a pay cut or already found a better position elsewhere – so essentially six applicants, down from 42 applicants for two positions in 2010.

Unfortunately, the pay raises from last session have not reversed this downward trend for clerks. Two months ago: • The 28th Judicial District (Salina and Minneapolis) had only eight applications for an opening, down from 50 for an opening just five years ago.

• The 5th Judicial District (Emporia and Cottonwood Falls) had only 12 applications for an opening, down from 38 just five years ago.

• And the Sedgwick County Court had five openings – but only six applicants. Only three were hired. Last month that court had three openings but only three applicants – of which only one was deemed qualified.

Trying to fill these particular positions will only become more difficult. Starting pay is $11.80 per hour. But recently WalMart announced it is raising its minimum wage to $11 per hour and is adding eligibility for bonuses up to $1000.

For CSO I's (probation officers) the news is regrettably about the same.

• For example, in 2016 the 17th Judicial District in northwest Kansas had only four applications for an opening; down from 21 applications in 2005.

And unfortunately, the recent pay raises have not reversed this downward trend for CSO's. Three months ago: 28

The Journal of the Kansas Bar Association

• The 28th Judicial District (Salina and Minneapolis) had only 11 applicants; down from 38 in 2011.

Average Cost of Turnover: The National Center described some of the hidden cost of underpaying employees—which results in turnover. As mentioned, our turnover rate is nearly five times higher than the national average.

Among the relevant factors considered in this cycle of inefficiency were the time and energy spent on recruiting, interviewing, and hiring new employees, with existing employees trying to cover all the work until the vacancies are filled. And then time and energy is spent on training the new person – by existing employees who again have to put aside their regular duties. If this increase in turnover and decline in applicants continues to worsen, at some point we will find ourselves— particularly in the smaller, rural counties – with no suitable applicants. And because Kansas statute requires at least one judge per county, that means the only judge in the county will be doing all the court's work.

Putting aside the obvious inefficiencies, the real question then becomes: how many judges will be willing to perform all these court functions in these counties—when today many of our magistrate judges already want to leave their existing workloads for higher paying jobs? In light of this reality, an even more important question may arise: do you want to continue to keep at least one judge in each of our 105 counties if we are unable to hire any suitable staff to support them? That is a policy question for this legislature to consider. I take no position on it today.

Getting down to brass tacks, what do all these people in the Judicial Branch do for the money you currently invest in them?

Well, last fiscal year, they processed almost 400,000 new cases filed in the district courts. This caseload included more than 20,000 felony cases and more than 14,000 misdemeanor cases. In addition to supervising convicted criminals on probation, they protected almost 7,000 children who were in need of care by ruling on requests related to their safety and wellbeing. And they protected nearly 14,000 people by issuing restraining orders­—to say nothing of the probate, juvenile, domestic, traffic, and other cases. Among the thousands of civil cases filed were those by Kansas business owners to collect money owed them.

Last week the governor said from this podium, that we "will fight the scourge of human trafficking like no other state and throw that darkness from our borders." In response to his request for us to recognize the efforts of the attorney general and the legislature on this issue, General Schmidt got a standing ovation. Rightfully so. But with this renewed emphasis on increasing the numbers of people prosecuted for these terrible crimes, we need to remember where the attorney gen-

state of the judiciary

eral—and all of the prosecutors of this state—will go to do that: the Kansas courts whose personnel will shoulder these increased caseloads. The same can be said for any other new legislation passed to achieve the worthy goals of protecting human rights, criminalizing conduct, or both.

Let me return to a few examples of the many other things the courts have done.

Committee on Fees, Fines, and Bonds: We are all painfully aware of the problems that were disclosed in the city of Ferguson, Missouri. Although municipal court problems of that magnitude have not arisen in Kansas, your Supreme Court has nevertheless been proactive. First, I have communicated with the judge who served as the Chief Justice of Missouri at that time.

Second, we have created a committee to review bonding practices, fines, and fees of the more than 300 municipal courts in Kansas. Among other things, the committee will examine the operations of these courts and compile a "best practices" model for them to follow. Committee members from across the state include Rep. Brad Ralph of Dodge City. The committee has now met twice—with more to come. It will report its ultimate findings to not only our judicial administrator but also the League of Kansas Municipalities.

With that municipal courts committee as a model, a number of chief judges have asked the Supreme Court to later form a similar one for our state court system. While best practices and some degree of uniformity are worthy goals, the real foundation for the entire project is the desire to maintain Kansans' faith in their system of justice. So if problems are found, we intend to see they are fixed.

Specialty Courts: Specialty, or problem-solving courts, differ from the usual courts because they coordinate services provided to criminal offenders with direct supervision by a judge. Most of these are drug courts which attempt to address an offender's underlying substance abuse problems—problems that often lead to a frustrating cycle of criminal offenses, incarceration, and then more offenses. National research has shown that drug courts can be effective in reducing offender recidivism. That in turn saves considerable judicial—and correctional—resources. To date, some variation of drug courts—ranging from juvenile drug courts to those limited to defendants addicted to meth—exist in 10 of our 31 judicial districts.

But the tradeoff for these rewards continues to be more judicial time: they often require intense supervision by judges, in addition to that by their regular probation officers. Despite this extra work, several more districts are looking to start drug courts in 2018 because they see the benefits for the individuals and the state.

Other types of specialty courts have been established with this same goal in mind. Veterans' court in Johnson County was created for those who have committed misdemeanors or lowerlevel felonies and who are eligible for treatment by the Veterans Administration. Like drug courts, the veterans' court offers alternatives to incarceration. A recent graduate of the 18-month long program credits it with turning him away from suicide after his return from a combat tour in Afghanistan.

Similarly, Douglas County District Court established a Behavioral Health Court to target those whose mental health issues may have contributed to the low level, nonviolent criminal charges against them. The goal is to dismiss the charges after a period of successful intervention and treatment.

And other judicial districts have similar nontraditional courts with similar goals. The 29th Judicial District, Wyandotte County, has "mental health court." Lyon County in the 5th Judicial District has "Home Court" for supervising low risk juvenile offenders with capable parental involvement.

And three districts have juvenile truancy courts. All of these specialty courts operate pursuant to Supreme Court Rule that adopts statewide operating standards for such courts.

Supreme Court Travel: My last topic on the State of the Kansas judiciary concerns the appellate courts continuing to take their proceedings directly to the people of Kansas. The court of appeals has heard its cases argued across the state for years—recently in Hugoton and Ulysses in southwest Kansas.

As for the Supreme Court, most recently we heard cases in Winfield and Emporia. This spring we will be in northwest Kansas. Like others, that session will be held in the evening —so that people who work during the day can come and see for themselves, who we are, what we do, and how we do it.

To date, Hays has the record turnout: nearly 700 people attended. But Goodland is where Justice Luckert grew up. So we may see that record broken as people come out to see their "hometown achiever."

Conclusion: In closing, for the good work you have done for Kansans in these difficult times, I want to express my gratitude. Now I am well aware you are still facing many challenges during this legislative session. Maybe some of the biggest ones ever.

From my remarks this afternoon, clearly one challenge is this: If things continue on this financial path in the judicial branch, there are serious concerns about our ability to administer the quality of justice that Kansans have come to expect and deserve. But I believe that you will continue to take fair account of the needs of the judicial branch—our judges and employees—as we continue to enforce the constitutional rights held so dear by Ronald Reagan. And continue to prowww.ksbar.org | April 2018 29

state of the judiciary

Ward Law Offices, LLC welcomes Tony A. Potter, Of Counsel to the firm.

(State of the Judiciary, Cont'd.)

vide justice embraced by the founders of not only this nation but also this great state.

I began with a quote from President Reagan. Let me end with one from another president, our fellow Kansan, Dwight Eisenhower. Sixty years ago, President Eisenhower said: If civilization is to survive, it must choose the rule of law. . . . [W]e honor not only the principle of the rule of law, but also those judges, legislators, lawyers and law-abiding citizens who actively work to preserve our liberties under law.

His words ring so true today. If justice, liberty and the rule of law are not to wither in Kansas, but to thrive, then as the man from Abilene said, we all need to work together. And we need your help as legislators. It's nice to have an occasion like this to get to know each other a little better. So we invite you to a reception outside the old Supreme Court chamber after my remarks. My fellow judges and I look forward to introducing ourselves and visiting with you there, and to talk about how to implement what Eisenhower said.

I bid you Godspeed. And to wish you, as they say on ships, "Fair winds and following seas." Thank you. n

T. Lynn Ward w Tony A. Potter w Laura E. Poschen 345 Riverview, Suite 120 | Wichita, KS 67203

KBA Feb 2017 T Potter.indd 1

30

The Journal of the Kansas Bar Association

316.260.3120 | wardlegal.com

12/7/17 8:45 AM

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

A Note from the Chief Justice of the Kansas Supreme Court, The Honorable Lawton R. Nuss When I delivered my State of the Judiciary address to the Kansas Legislature, I explained why compensation increases are needed for judicial branch employees and judges. For example, nearly one-third of our employees must also take jobs outside the judicial branch just to make ends meet. And annual compensation for our district judges ranks next to last in the entire nation. Since my January address, our personnel have discussed these details and others with many legislators.

I was heartened when this message was reinforced by a number of KBA members March 19. On that day, those members visited the Capitol and spoke with nearly 60 legislators.

They were able to explain how below-market wages paid to judicial branch employees and judges impact their clients—the legislators' constituents. This impact on everyday Kansans and businesses is a story most persuasively told by lawyers.

I deeply appreciate not only the KBA's initiation of this program but also those members who devoted their day to promoting justice in a different manner than usual.

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

www.ksbar.org | April 2018 31

When the professional

stakes are highest,

put the deepest legal experience

on your side.

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

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

JosephHollander.com Christopher M. Joseph

Diane L. Bellquist

KANSAS CITY

LAWRENCE

TOPEKA

WICHITA

10990 QUIVIRA, #200 OVERLAND PARK, KS 66210

5200 BOB BILLINGS PKWY., #201 LAWRENCE, KS 66049

1508 SW TOPEKA BLVD. TOPEKA, KS 66612

500 N. MARKET WICHITA, KS 67214

913.948.9490

785.856.0143

785.234.3272

316.262.9393

Fastest smartest malpractice insurance. Period.

800.906.9654 GilsbarPRO.com

32

The Journal of the Kansas Bar Association

the diversity corner

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

by Katherine Lee Goyette

Fred D. Gray

I

n early February 2018, I had the opportunity to attend the American Bar Association Mid-Year Meeting in my capacity as President-Elect of the Military Spouse J.D. Network, a military spouse bar association. The National Conference of Bar Presidents awarded their NCBP Fellow Award this year to Mr. Fred D. Gray. He was honored with the NCBP Fellow Award on Friday, February 2, 2018 during the NCBP/NABE/NCBP Joint Awards Luncheon in Vancouver, British Columbia. Though I had heard of Mr. Gray, I did not know the extent of his contributions to civil rights law until the ABA meeting—contributions in the law that are certainly worth sharing.

Mr. Gray a native of Montgomery, Alabama and is most known for his work as a civil rights lawyer during the civil rights movement, alongside Dr. Martin Luther King, Jr. and E.D. Nixon., as well as an author, lecturer, and state legislator (one of the first African-Americans to serve in the Alabama Legislature since 1870’s-era re-construction). Currently, Mr. Gray is a senior partner at Gray, Langford, Sapp, McGowan, Gray & Nathanson, of Tuskegee, Alabama.1 During the 1950’s, the Alabama state attorney general outlawed the National Association for the Advancement of

34

The Journal of the Kansas Bar Association

Colored People (NAACP) for eight years. Mr. Gray served as legal counsel for the organization during the time it was not allowed to operate. Mr. Gray also represented Rosa Parks after her arrest following a refusal to give up her seat on a Montgomery, Alabama, city bus. After her arrest led to the Montgomery Bus Boycott, Mr. Gray served as Dr. Martin Luther King, Jr.’s first civil rights attorney. Over the past half century, Mr. Gray has litigated landmark civil rights cases, including: • Browder v. Gayle, 142 F.Supp. 707 (M.D. Ala. 1956) (holding that bus segregation is unconstitutional under the Fourteenth Amendment); • Gomillion v. Lightfoot, 364 U.S. 339 (1960)(electoral districts with boundaries drawn to specifically disenfranchise black voters violated the Fifteenth Amendment, later leading to the “one man, one vote” concept); • William v. Wallace, 240 F.Supp. 100 (M.D. Ala. 1965) (ordering the State of Alabama to protect marchers protesting their inability to vote from Selma to Montgomery)2; • Mitchell v. Johnson, 250 F.Supp. 117 (M.D. Ala. 1966) (seeking a permanent injunction prohibiting jury commissioners from excluding qualified blacks from jury service); and • Lee v. Macon County Bd. of Educ., 270 F.Supp. 859 (M.D. Ala. 1967)(integrating all state institutions of higher learning in Alabama, including the majority of elementary and secondary school systems).

Finally, Mr. Gray also served as counsel in protecting the rights of persons subjected to the infamous Tuskegee Syphilis Study, a 40-year study conducted by the U.S. Public Health Service intended to observe untreated syphilis in populations of blacks in rural Alabama, though concealed as “free health care” from the federal government to victims.

Mr. Gray was the first person of color to serve as president of the Alabama Bar Association in 2002 as well as the first person of color to serve as general counsel for Alabama State University. He founded the Tuskegee History Center, a museum that educates the public about the Tuskegee Syphilis Study and provides civil rights educational resources.3 Mr. Gray holds numerous honorary degrees and awards, including the Federal Bar Association’s Sarah T. Hughes Civil Rights Award (2004) and the American Bar Association’s Thurgood Marshall Award (2004). Mr. Gray has written three books,

the diversity corner

“Bus Ride To Justice,” “The Tuskegee Syphilis Study: The Real Story and Beyond,” and “The Children Coming On: A Retrospective of the Montgomery Bus Boycott.”4 n 1. Profile – Fred D. Gray, Esq., http://www.glsmgn.com/Attorneys/ Default.aspx.

2. Mr. Gray was portrayed by Cuba Gooding, Jr. in the 2014 film Selma, which included Gray’s oral argument before Judge Frank Johnson that the march to Selma should be allowed to occur.

3. More information about the Tuskagee History Center can be found at http://www.tuskegeecenter.org.

4. Fred D. GRAY, BUS RIDE TO JUSTICE (NewSouth Books)(1995); FRED D. GRAY, THE TUSKEGEE SYPHILIS STUDY: THE REAL STORY AND BEYOND (NewSouth Books)(1998); FRED D. GRAY, THE CHILDREN COMING ON: A RETROSPECTIVE OF THE MONTGOMERY BUS BOYCOTT (Willy S. Leventhal ed., Black Belt Press)(1998).

Kansas Bar Association

LEGISLATIVE

Bill Tracking Visit

About the Author Katherine Lee Goyette (McBride) is a 2010 graduate of Washburn Law (JD) and a 2012 graduate of the University of Kansas School of Law (LLM). She is currently working for Fendley & Etson in Clarksville, Tennessee; previously, she was a felony prosecutor in southern Colorado. Katherine has been a member of the KBA's Diversity Committee since 2011, serving as co-chair of the Diversity Committee from 2015-2016.

Katherine is the President-Elect of the Military Spouse JD Network, a military spouse bar association, and resides north of Nashville, Tennessee with her active-duty Army husband.

View our official stance on current and past legislation www.ksbar.org/bill_tracking

www.ksbar.org | April 2018 35

Outstanding Speakers

Recognition

The Kansas Bar Association would like to extend a special thank you to and recognition of the following individuals who gave so generously of their time and expertise in speaking at our Continuing Legal Education seminars from January through March 2018. Your commitment and invaluable contribution are truly appreciated.

Greg Bauer, Bauer, Pike, Bauer, & Wary, LLC, Great Bend David Berson, Berson Law Group, LLP, Overland Park

Stana Martin, ACSIA Partners, LTC Insurance Solutions Specialist, Liberty, MO

Susan A. Berson, Berson Law Group LLP, Overland Park

Anne McDonald, Kansas Lawyers Assistance Program, Topeka

Brendan Burke, Norton, Wasserman, Jones, & Kelly, LLC, Salina

Robert McFadden, Foulston Siefken LLP, Wichita Angela Meyer, Meyer Law Firm, LLC, Pittsburg

Dennis Davidson, Thompson, Arthur, Davidson & Katz, Russell

Humaira Mirza, The Mirza Law Firm, LLC, Overland Park

Karl Hesse, Foulston Siefken LLP, Wichita

Joseph Molina, III, Kansas Bar Association, Topeka

Benjamin C. Jackson, Jackson Legal Group, LLC, Scott City

John Pike, Withers, Gough, Pike & Pfaff, LLC, Wichita

Lynn R. Johnson, Shamberg, Johnson & Bergman, Kansas City, MO Robert Jones, Norton, Wasserman, Jones, & Kelly, LLC, Salina

Sara Rust-Martin, Kansas Bar Association, Topeka Matthew Salzman, Stinson Leonard Street LLP, Kansas City, MO Hon. Robert Schmisseur, Ret., Schmisseur Law, Pratt

Hon. Phillip B. Journey, 18th Judicial District, Div. 1, Wichita

Joseph Schremmer, Depew Gillen Rathbun & McInteer, LC, Wichita

Erika Jurado-Graham, Jurado Graham Immigration Law Firm, Kansas City, MO

Todd Sheppard, Charlson & Wilson Bonded Abstracters, Inc, Manhattan

Shawn Jurgeson, Special Counsel to the Chief Justice, Topeka

Hon. Kevin M. Smith, 18th Judicial District-Juvenile Division, Wichita

Michael J. Kuckelman, Kuckelman Torline Kirkland, Overland Park

Amanda Stanley, The League of Kansas Municipalities, Topeka

Callie Marks, Charlson & Wilson Bonded Abstracters, Inc, Manhattan

Tyler Turner, Jeter Turner Sook Baxter, LLP, Hays

substance and style

by Joyce R. Rosenberg

I

1

n February 2018, a major trade secrets case, Waymo L.L.C. v. Uber Technologies, Inc., was tried in the U.S. District Court for the Northern District of California.2 An interesting detail emerged as the evidence came in. The evidence of the parties’ communications and intent probably signals larger things to come.

Much of the evidence in Waymo v. Uber involved electronic communications between members of the parties’ executive teams. And predominant in many of the emails, text messages, and instant messages were emojis3 and emoticons. One key piece of evidence early in the trial was a text between two executives that consisted exclusively of the emoticon ;-) and a link to a YouTube video.4 Of course, emojis, and their more-primitive brethren emoticons, are those modern hieroglyphics that writers use to convey feelings in written messages. Emoticons, such as :-), have existed since at least 1982.5 Emojis, the tiny, standardized cartoon images of faces, people, and things, came to the United States in 2010 or 2011.6 There are now over a thousand emojis in use.7 The problem for legal readers, writers, and advocates is one of interpretation. Exactly what does any given emoji mean?

“Just like non-verbal acts, which have various meanings, emoticons and emojis have no standard definitions. They can be used literally or ironically and can be interpreted by the sender and recipient in very different ways.”8 Courts generally treat emojis as admissible parts of the circumstances of the entire communication.9 Just a few examples: In a trial in the U.S. District Court for the Southern District of New York, prosecutors initially omitted the emojis as they read the defendant’s internet posts aloud to the jury.10 U.S. District Judge Katherine B. Forrest corrected the omission, instructing the jury that it had to consider the emojis along with the text as “part of the evidence of the document.”11 The Delaware Court of Chancery held that the inclusion of a smiley-face emoticon at the end of the plaintiff’s text message was evidence “he was amused by yet another opportunity to harass” the defendant, despite the plaintiff’s claims to the contrary.12 And the Michigan Court of Appeals held that in a defamation case, a statement that included the emoticon :P “cannot be taken seriously as asserting a fact . . . . [A] :P emoticon is used to represent a face with its tongue sticking out to denote a joke or sarcasm.”13

Although emojis present some special interpretive challenges, judges and juries are well-equipped to determine meaning and intent based on the context of any given communication.14 In a recent article, law professor Eric Goldman explores the legal issues related to widespread use of pictographic communications.15 To improve advocacy when dealing with emojis, Prof. Goldman suggests, lawyers can be mindful of several key pitfalls of interpretation:

1. Fluid Meaning Emojis mean different things to different people, often depending on the situation.16 Consider this face: . Is it a menacing, tooth-baring grin? A rictus of anxiety? A grimace of pain—and if so, physical pain or emotional? The Unicode definition, “grimacing face,” does not clarify its deeper meaning.17 Is a face with tears of joy (its Unicode definition), or a face laughing to the point of tears (a common usage)? If it’s the latter meaning, is it a reaction to something truly hilarious, or is it meant to deride something not funny at all? As part of the circumstances of a larger communication, an emoji can be one data point in determining the parties’ meaning.

But by itself, an emoji is inscrutable without more information about the context and the writer’s intent.

Some studies have begun attempting to describe commonlyunderstood meanings for emojis.18 It seems unlikely, however, that they can account for the creativity of expression afforded by emojis’ variety. Even if we have some hope of interpreting the tiny facial expressions, how do we assign meaning to the dancing lady ,19 the hammer ,20 or the avocado ?21 Prof.

Goldman proposes the need for a widely-accepted, searchable emoji dictionary.22 But a dictionary would describe common uses, not prescribe exclusive ones. A dictionary could not account for people’s innovative or nonstandard uses and understandings of emojis.

2. Easy Misidentification Due to their size, emojis may be hard to see.23 Many of them are similar, varying by only very tiny details. For example, and look almost identical, but their differing eye shapes suggest potentially different meanings. Especially when viewed on a small screen, it would be easy for a drafter to select the wrong one or for a reader to misidentify the emoji.24 www.ksbar.org | April 2018 37

substance and style

Worse, emojis vary slightly across platforms, so that the same emoji looks different when viewed on an Apple product than on a PC. Here is the “face with tears of joy” as it appears . Here is how it appears on Windows: . The on iOS: differences may seem insignificant, but conveying emotional meaning with pictures is difficult and subtle. The differences across platforms can cause misunderstandings as the drafter sends one type of face, but the reader receives something else.25

3. Publication and Research Challenges The common electronic databases do not include emojis when they publish cases and secondary sources in their standard format.26 That exclusion creates problems for legal researchers. It is impossible to search for emojis or emoticons to find prior opinions discussing their meaning.27 And it is difficult for secondary sources to include the illustrations necessary for full exploration of issues of meaning and interpretation. As these issues begin to arise more frequently, it will be important for LexisNexis, Westlaw, and others to find a way to fix that omission. Likewise, courts will need to consider how to include emojis in published opinions when necessary to fully convey determinative facts.28 Eventually, emojis will become just one more ordinary component in the endless variety of human communication.

While they are relatively novel, it is a good idea to keep in mind their potential for confusion, as well as for expressiveness. We can remind our clients that including emojis in their communications can insert ambiguity or may not have the intended effect. And we will need to keep these ideas in mind for what is surely the next frontier in interpretation of extratextual meaning: Writers of text messages and online posts have begun including short, repeating videos (commonly known as .gifs) in an attempt to convey humor or deeper emotions. n

About the Author Joyce R. Rosenberg is a clinical associate professor at KU Law School, where she teaches Lawyering Skills. She is a 1996 graduate of KU Law. She served as editor in chief of the Kansas Law Review before there were emojis. jrosenberg@ku.edu

38

The Journal of the Kansas Bar Association

1 . In text, this essay might be called “Thinking About Emojis.”

2. Waymo, L.L.C. v. Uber Technologies, Inc., No. 3:17-cv-00939-WHA (N.D. Cal. filed Feb. 23, 2017). The parties settled mid-trial. The case involved self-driving car technology. For complete coverage of the trial, see Sarah Jeong, The Battle of the Damning Emails Begins With Waymo v.

Uber Opening Statements, THE VERGE (Feb. 5, 2018), https://www.theverge.com/2018/2/5/16975878/waymo-v-uber-trial-opening-statementstravis-kalanick-emails and related articles.

3. “Emojis” is the correct plural form in English, although “emoji” is also acceptable. Celeste Mora, Are You Sending Emoji or Emojis?, GRAMMARLY (July 14, 2016), https://www.grammarly.com/blog/emojis-emoji/.

This essay uses “emojis” as a simpler, more-standard English pluralization.

4. “I REPEAT, THE JURY IS GOING TO SEE A TEXT THAT IS COMPOSED OF A WINKY EMOTICON AND A LINK TO A YOUTUBE CLIP OF MICHAEL DOUGLAS'S GREED IS GOOD SPEECH FROM WALL STREET,” Sarah Jeong (@sarahjeong), TWITTER (Feb. 7, 2018, 9:56 AM), https://twitter.com/sarahjeong/status/961267372735660032.

5. Mora, supra note 3.

6. Id. Apple devices put emojis in the general public’s hands by 2011 with iOS 5, and other manufacturers followed.

7. Amanda Hess, Exhibit A: ;-), SLATE (Oct. 26, 2015), http://www.

Slate.com/articles/technology/users/2015/10/emoticons_and_emojis_ as_evidence_in_court.html.

8. Megan E. Boyd, Emojis, Emoticons, & Evidence, LADY (LEGAL) WRITER (Nov. 12, 2015), http://ladylegalwriter.blogspot.com/2015/11/ emoticons-emojis-and-evidence.html.

9. See Eric Goldman, Surveying the Law of Emojis 14, 56 Santa Clara Univ. Sch. of Law Legal Studies Research Paper, Ser. No. 8-17, May 2017, https://ssrn.com/abstract=2961060.

10. Benjamin Weiser, At Silk Road Trial, Lawyers Fight to Include Evidence They Call Vital: Emoji, N.Y. TIMES A22 (Jan. 29, 2015).

11. Id. 12. In re Shawe v. Elting LLC, 2015 WL 4874733 at *23 (Del. Ch. 2015).

13. Ghanam v. Does, 845 N.W.2d 128, 145 (Mich. Ct. App. 2014).

For more examples of cases considering the meaning of emojis and emoticons, see Goldman, supra note 9, at 15.

14. “Courts have always had to interpret nonverbal cues, like shrugs and winks, that arise in face-to-face conversations.” Hess, supra note 7.

15. Goldman, supra note 9.

16. Id. at 17.

17. Unicode Standard includes standardized descriptive names for each emoji. But those standard labels may or may not reflect the user’s intent. Hess, supra note 7. Unicode definitions can be found at EMOJIPEDIA, https://emojipedia.org/. Discover an emoji’s name by hovering a computer cursor over the emoji.

18. Hess, supra note 7 (citing Petra Kralj Novak, et al., Sentiment of Emojis, ARXIV.ORG (Sept. 25, 2015), https://arxiv.org/abs/1509.07761).

19. It could mean literal dancing—but it could also mean, for example, that the writer is feeling happy, carefree, or dismissive.

20. The hammer could conceivably signify, for instance, hard work, power, or a threat.

21. The avocado could mean almost anything, or nothing at all. See also Hess, supra note 7, discussing “positive” and “negative” uses for the bento box and the panda face . Even if researchers can identify how people tend to use a given emoji, the reason why an emoji is more “positive” or “negative” remains mysterious. Id. 22. Goldman, supra note 9, at 34.

23. Id. at 15.

24. Id. at 16.

25. Id. at 25.

26. Geoff Adlam, Emojis and the Law, NEW ZEALAND LAW SOCIETY (May 25, 2017), https://www.lawsociety.org.nz/news-and-communications/latest-news/news/emojis-and-the-law.

27. Id.; see also Goldman, supra note 9, at 51.

28. See Goldman, supra note 9, at 51.

Save

at D e th

e

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

Thursday, June 14, 2018 DoubleTree by Hilton Seattle Ballroom 10100 College Blvd Overland Park , KS

Hosted cocktail bar 5:30 p.m.

Dinner and cash bar 6:30 p.m.

Black Tie Optional

A LEGACY OF

EXCELLENCE Providing superior legal services throughout Kansas...

FOR OVER 70 YEARS A Full-Service Law Firm WICHITA • TOPEKA

www.MorrisLaing.com www.ksbar.org | April 2018 39

Etched in Digital Stone:

Nonconsensual Pornography in Kansas, and a Web That Never Forgets.

By Christopher Teters

etched in digital stone

I. Introduction

Y

ou walk into the office one morning and you notice your coworkers are treating you differently. A few fail to stifle a laugh, or they avoid eye contact as you walk past. Your boss asks you to come to her office. She tells you that someone found photographs of you on the Internet and management is concerned. She turns to her computer monitor and you see images; photos created two years ago when you trusted the wrong person. Your ex promised the photos would be deleted, that no one would ever see them. Your ex lied. Now your most intimate moments are exposed.

Congratulations. You’ve become the victim of “revenge porn.”

The term revenge porn sparks salacious mental images of scorned and angry lovers looking to shame or torment their former partners. However, this term can be misleading and too limiting in scope. To better capture the concept of revenge porn along with other, similar invasions of privacy, some scholars and commentators use the term “nonconsensual pornography.”1 Nonconsensual pornography, at the most general level, is the distribution of a sexually graphic depiction2 of an individual without the individual’s consent.3 The distribution makes for splashy national headlines, with cases involving movie stars,4 Playboy models,5 Kardashians,6 and even the United States Marine Corps.7 For the victims of nonconsensual pornography, the immediate fallout can lead to sexual harassment, extreme anxiety with panic attacks, eating disorders, depression, an inability to work, physical violence and death.8 And worse yet, attempts to end the illicit distribution of the intimate images is nigh on impossible.9 To better grasp how nonconsensual pornography intersects with the law, it is important to understand that nonconsensual pornography includes depictions produced without consent, for example, through the use of hidden cameras.10 Many states bar this type of nonconsensual pornography through statutes prohibiting voyeurism;11 however, many of these statutes are limited in scope by subject matter of the depictions, location of the victim, requirements that the offender must have a specific intent, or requirements that the offender trespass or otherwise breach a person’s private space.12 In contrast with voyeurism, revenge pornography, a subset of nonconsensual pornography, includes depictions created consensually by romantic partners for their personal use, which are later distributed without the consent of one or both of the partners.13 Modern couples, especially younger couples, are more frequently recording their intimate moments.14 In one recent study, as many as 55% of the surveyed 18- to 25-year-olds reported sending their partner a sexually suggestive photo or video.15 The act of distribution of these consensually generated depictions by one of the partners or a third-party, without the consent of everyone involved in the depiction, constitutes nonconsensual pornography. Until recently, many states did not expressly protect their citizens from this latter form of nonconsensual pornography.16 Recent efforts by privacy and sexual crime victim advocates have led to 38 states and the District of Columbia adopting specific statutes that can be used to criminally prosecute individuals who distribute this second category of nonconsensual pornography.17 Kansas joined in the wave of states implementing criminal nonconsensual pornography statutes in 2016.18

www.ksbar.org | April 2018 41

etched in digital stone

This article will focus on broader concepts of invasion of privacy, the act of nonconsensual distribution of consensually created sexual depictions, and the new Kansas revenge porn criminal statute. For the sake of distinguishing this specific act from the broader term of nonconsensual pornography, this article will use the term “nonconsensual distribution.”

Part II of the article begins with a brief history of privacy laws, including a short examination of Kansas privacy laws including the legislative history of the new statute. The section then discusses some recent nonconsensual distribution events and prosecutions. Part III will introduce the new Kansas statutes and compare the Kansas approach to some of the surrounding states. Part IV will discuss some of the challenges of protecting individuals from the damage of nonconsensual distribution. That section will additionally identify some of the specific weaknesses of the Kansas statute. Finally, Part V will offer some concluding thoughts on the status of Kansas’ protections for its citizens.

II. Privacy and the Rise of “Revenge Porn” A. The Birth of the Right of Privacy Since the advent of the Internet, many legal,19 political,20 and media21 commentators have warned that privacy rights have substantially weakened. So before addressing new statutes criminalizing a specific invasion of privacy, a brief examination of the “right of privacy” may be helpful. As a broad legal concept, the right of privacy is relatively modern.22 During the colonial and post-revolution periods in America, the privacy concerns of most citizens and leaders dealt only with unrestrained government intrusion into the daily lives of the populace.23 While this concern led to the adoption of the Bill of Rights, there is no mention in the United States Constitution of any clear right of privacy.24 However, early in American history, the United States Congress statutorily guaranteed a privacy right in mailings by criminalizing the invasion of a citizen’s mail.25 After the invention of the telegraph, some states further acted to protect the privacy of wire correspondence by criminalizing wiretaps and other forms of communication interference.26 In 1918, Congress passed an act prohibiting wiretapping or divulging of private information transmitted over telephone and telegraph wires.27 By 1928, forty-one states had banned wiretapping and disclosure of telephone and telegraph messages.28 In 1890, Samuel D. Warren and Louis D. Brandeis, perhaps in response to the overly curious nature of the contemporary press,29 published The Right of Privacy and articulated a privacy interest at common law distinct from the interests of property, tort, or contract.30 Part of the motivation for the article came from the invention of “instantaneous photography,” which assisted the distribution of candid photos using the press.31 Following the Warren and Brandeis article, recognition of privacy torts started growing in the early twentieth 42

The Journal of the Kansas Bar Association

century.32 In 1960, renowned legal scholar William L. Prosser noted that over 300 cases had reviewed, interpreted, applied, and shaped Warren and Brandeis’ right of privacy.33 As a result of his analysis of the Warren and Brandeis progeny, Prosser identified four specific invasion of privacy causes of action: 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.34 Prosser’s work, like Warren and Brandeis’ before him, proved to be pivotal in crafting what most now regard as the right to privacy torts.35 Prosser later incorporated his four privacy actions into the Restatement (Second) of Torts, and as of today, a vast majority of states have adopted his articulation of at least one of the privacy actions.36 Contemporary to Prosser’s work, both the Supreme Court of the United States and Congress continued incorporating more privacy protections into American law.37 For the Supreme Court, the 1960s and 1970s were a time of discovery for a number of privacy concepts, with the landmark decisions of Griswold v. Connecticut,38 Katz v. United States,39 and Roe v.

Wade.40 Congress, in the late 1960s and continuing through the modern era, implemented data privacy laws, regulating the manner in which data about individuals could be collected and distributed, for a variety of contexts.41 However, since the start of the post-Prosser privacy push, there have also been a number of statutory,42 judicial,43 and executive44 erosions to the privacy right.

B. Breach of Privacy Protections in Kansas Similar to many of the other states, Kansas has also long protected some privacy rights. Kansas criminal law has protected the mail of its citizenry since the founding of the territory, when the territorial statutes made reading or publishing another’s mail a misdemeanor offense.45 The Kansas Supreme Court recognized a right to privacy as early as 1918, determining that a store owner could not use a woman’s image in advertising without her permission.46 Furthermore, Kansas courts have recognized the four distinct categories of privacy torts outlined by Prosser.47 Kansas law additionally criminalizes a number of invasions of privacy besides interference with the mail, including wiretapping telephone communications, eavesdropping and voyeurism.48 Kansas’ nonconsensual distribution statute further expands this list of criminal invasions of privacy.49 The Kansas nonconsensual distribution statute began as House Bill 2501, introduced by the Kansas House of Rep-

etched in digital stone

resentatives Committee on Corrections and Juvenile Justice, as a simple bill to amend the statute defining a crime committed with an electronic device.50 On February 18, 2016, Representative Sydney Carlin successfully amended the bill to add, among other changes, the nonconsensual distribution language.51 The bill passed through the House by a wide margin and went to the Kansas Senate.52 The Kansas Senate added additional elements to the nonconsensual distribution crime.53 Thereafter, the bill passed in the Kansas Senate, and, after both bodies reconciled the differences between the two versions, the legislature sent the bill to the Governor.54 On May 17, 2016, Kansas Governor Sam Brownback signed HB 2501 into law.55 C. Nonconsensual Pornography Legislation Elsewhere In early 2014, only six states had criminalized nonconsensual distribution.56 In the intervening years, the majority of states have adopted statutes addressing nonconsensual distribution.57 At the time of this writing, over 38 states and the District of Columbia have laws addressing nonconsensual distribution.58 However, Congress has not yet matched this explosive growth of state legislation. That is not to say Congress has been entirely silent; between 2015 and early 2017, United States Representative Jackie Speier introduced two pieces of legislation, one for civilians59 and one for military members,60 attempting to address nonconsensual distribution. Congress took no action on either bill.61 Not to be deterred, in late 2017 a bipartisan group of United States Senators introduced the Ending Nonconsensual Online User Graphic Harassment (ENOUGH) Act.62 However, it is not yet clear whether Congress will advance the ENOUGH Act. D. Famous Recent Examples of Nonconsensual Pornography Nonconsensual distribution has rapidly grown in attention over the last few years, in part due to a number of recent scandals and incidents. One of the most egregious and frequently discussed involved the United States Marines.63 In March 2017, the United States Naval Criminal Investigate Service began investigating reports that active-duty and retired service members of the United States and British armed services were using a Facebook group to distribute photos of women in a state of nudity or sexual activity.64 Despite the discovery of the group, some Marines continued to distribute photos through other social media platforms and websites.65 As a result of the practice, at least one Marine received a court martial.66 In response, some members of Congress sought to criminalize “revenge porn” in the military.67 Ultimately, Congress incorporated its desire to punish military members for nonconsensual distribution into a defense spending bill, which calls for a court-martial punishment for troops who engage in the

unauthorized distribution of intimate or sexually graphic depictions.68 Another famous nonconsensual distribution incident was the Apple iCloud celebrity photo leak of 2014.69 In one night, hundreds of photos and videos of numerous celebrities, which had been stored within the celebrities’ individual iCloud accounts, were released depicting the celebrities in various stages of undress or sexual activity.70 Two years later, the hacker revealed that he acquired the login credentials for the various iCloud accounts through social engineering and stolen passwords.71 The breach and subsequent release of nonconsensual pornographic depictions impacted Apple’s iCloud business72 and hurt Apple’s stock prices at the time,73 but the celebrities themselves were not likely damaged significantly by the leak.74 Finally, a Michigan woman’s case against an ex-boyfriend gained notoriety due to the large damages award.75 A photographer, who took intimate modeling photos of the woman, inadvertently gave the woman’s photos to an imposter.76 The imposter, who turned out to be the woman’s ex-boyfriend, posted the images online.77 The woman discovered that her ex-boyfriend had posted her images on multiple websites, and she spent months attempting to get the images removed.78 The woman sued her ex-boyfriend and won a $500,000 judgment in what is believed to be Michigan’s first monetary award for revenge porn.

These three incidents are examples of the scale of the nonwww.ksbar.org | April 2018 43

etched in digital stone

consensual distribution problem, which cuts through different cultures, groups, and economic levels of society. The examples demonstrate the significant costs to the victims, and to society, of nonconsensual pornographic distribution.

III. Legislative Approaches to Nonconsensual Pornography A. Kansas Approach House Bill 2501 updated four existing laws dealing with nonconsensual distribution, child pornography, blackmail, and crimes committed with electronic devices.79 HB 2501, in large part, amended the law to avoid harshly punishing teenagers, above the age of consent, who distribute or share nude or sexual depictions of themselves with their partners80 (commonly called "sexting").81 This part of the article will focus on the addition of K.S.A. 21-6101(a)(8), the new criminalization of distributing nonconsensual pornography.82 K.S.A. 21-6101(a)(8) reads:

(a) Breach of privacy is knowingly and without lawful authority:

...

(8) disseminating any videotape, photograph, film or image of another identifiable person 18 years of age or older who is nude or engaged in sexual activity and under circumstances in which such identifiable person had a reasonable expectation of privacy, with the intent to harass, threaten or intimidate such identifiable person, and such identifiable person did not consent to such dissemination.83 Under the new law, the first violation is a severity level eight, person felony,84 which, in 2017, carried a sentence range of between seven months of probation to twenty-three months of prison time.85 Any subsequent conviction under K.S.A. 2144

The Journal of the Kansas Bar Association

6101(a)(8) within five years of the first conviction is a severity level five, person felony.86 The subsequent conviction carries a sentence range of between 31 months of probation to 136 months of prison time.87 Note, however, that HB 2501 did not amend the Kansas Offender Registration Act to add violations of K.S.A. 21-6101(a)(8) to the list of acts requiring registration, so individuals convicted under the new law are likely not required to register as sex offenders.88 Before going further, it is worth making a distinction between this crime and a voyeur crime. Similar to the new statute, K.S.A. 21-6101(a)(6) & (7) make it a crime to distribute images, photos, films, videos, or recordings, of a person who is naked or undressing in a place that they have a reasonable expectation of privacy.89 Consent of the subject of the recording distinguishes the voyeur crimes from the new nonconsensual distribution crime. To be a criminal act under K.S.A. 21-6101(a)(6), the victim must not consent to or know about the depiction.90 Under K.S.A. 21-6101(a)(8), the depiction is consensually made, but the distribution is without consent.91 The elements of the crime needed to prove guilt may present significant difficulty to prosecutors. Using the Kansas pattern instruction as a guide, the elements of this particular breach of privacy crime are: (1) the defendant knowingly and without lawful authority disseminated a videotape, photograph, film, or image in which the victim is identifiable; (2) the victim was 18 or more years old at the time the media was produced; (3) the victim was nude or engaged in sexual activity in the media; (4) the victim had a reasonable expectation of privacy at the time the media was produced; (5) the victim did not consent to the dissemination of the media; (6) the dissemination of the media was done with the intent to harass, threaten, or intimidate the victim; and, (7) the act occurred within the jurisdiction of the prosecution.92 Two of the above elements may be particularly difficult to prove: the specific intent element and the reasonable expectation of privacy element. A separate question—the "identifiability" of the victim—is a broader issue and will be discussed further in Part IV. i.

Specific Intent

The Kansas nonconsensual distribution crime includes a specific intent requirement. In Kansas, when a statute requires a person to act "intentionally" or "with intent," the prosecutor must prove that the defendant acted with a "conscious objective or desire to engage in the conduct or cause the www.ksbar.org | March 2018 44

etched in digital stone

result."93 To prove a defendant committed the crime of nonconsensual distribution, the prosecutor must prove that the defendant distributed the depiction with the specific "intent to harass, threaten, or intimidate."94 Crimes requiring specific intent of harassment, threats, or intimidation are notoriously difficult to prove.95 To illustrate the challenge of this element, imagine in which a man and woman consensually record an intimate encounter and then go their separate ways. The man, particularly proud of the encounter and wanting to brag, shares the video with a group of friends, one of whom, unknown to the man, was the woman's immediate supervisor. The woman's relationship with the supervisor is forever damaged, and she is forced to find a new job. Under K.S.A. 21-6101(a)(8), the state could have a hard time proving that the man had any intent to harass, threaten, or intimidate the woman. The fact pattern indicates the man only had the intent to brag to his friends and did not consider the damage that distributing the depiction could do to the woman. Negligent? Definitely. Perhaps even reckless. But the man's actions do not seem to rise to the level of criminal intent. Thus, the new crime offers no refuge or protection for the woman.

The difficulty posed by the specific intent element is exacerbated by the fact that the statute does not define "harass, intimidate, or threaten." No other Kansas statute requires the exact same specific intent; however, a few statutes include similar specific intent elements that may be useful in helping to establish a definition.96 K.S.A. 21-5415, Kansas’ criminal threat statute, includes the specific intent to "place another in fear, or to cause the evacuation, lock down or disruption in regular, ongoing activities of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such fear or evacuation, lock down or disruption in regular, ongoing activities."97 Multiple Kansas courts have interpreted the evidence necessary to support a conviction under this intent element, and practitioners may find those interpretations helpful during nonconsensual distribution cases.98 Unlawful distribution of nonconsensual pornography has a similar intent element to the intent elements found in K.S.A. 21-6206, harassment by telecommunication device.99 K.S.A. 21-6206 includes multiple variants with specific intent elements requiring the offender to act with either "intent to abuse, threaten or harass" or simply an intent to harass.100 Likewise, unlawful transmission of a visual depiction of a child includes the element "with the intent to harass, embarrass, intimidate, defame or otherwise inflict emotional, psychological or physical harm."101 However, that intent element is broader in scope, and the crime includes a presumption of specific intent when the depiction is distributed to multiple people.102 While beyond the scope of this article, practitioners may further want to examine the other intimidation crimes defined in Kansas with similar intent elements.103

Beyond defining and proving the intent element, defendants facing specific intent charges also can raise voluntary intoxication as a defense.104 According to the pattern instruction, "voluntary intoxication may be a defense to the charge of [nonconsensual distribution] when such intoxication impaired the defendant's mental faculties to the extent that [the defendant] was incapable of forming the necessary intent..."105 While this is not an absolute defense sufficient to throw out the case, the defendant is allowed to present evidence of intoxication at trial as an affirmative defense.

Returning to the previous example, assume that the man knew the woman's supervisor was in the group, and the man wanted to embarrass the woman. If the state can prove the man’s specific intent, then the man may be guilty of criminal nonconsensual distribution. But if the man was drinking heavily, and his mental faculties were greatly impaired, he may be able to raise the defense of voluntary intoxication, arguing he had no idea what he was doing when he showed the video to the supervisor. Still, if the man is successful, the damage is done to the woman and the man escapes criminal liability. ii. Reasonable Expectation of Privacy

The state may also find difficulty in proving that the victim had a reasonable expectation of privacy. The introduction of this element may open the door to issues arising from the lineage of cases interpreting and defining a reasonable expectation of privacy following the United States Supreme Court’s decision in Katz v. United States.106 In the Fourth Amendment context, a person has a reasonable expectation of privacy if "first, the person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"107 While there is a significant difference between the Katz context, which deals with invasions by government actors, and the nonconsensual distribution context, which deals with invasions by private actors, some analysis on what has been considered a reasonable expectation of privacy may be helpful. Kansas courts have not addressed directly whether the Katz line of

www.ksbar.org | April 2018 45

etched in digital stone

cases applies to breach of privacy claims, and there is at least room for debate on the proper analysis.108 Under the Katz progeny, a person has little expectation of privacy in public spaces. When we drive or walk in public, we may be photographed numerous times by government and private security cameras, and thus, have no expectation of privacy on our streets.109 The United States Supreme Court held in United States v. Knotts,"[w]hen [a man] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."110 Therefore, applying the same reasoning to nonconsensual distribution case, a person who makes his or her sexual depiction in a public space likely has no reasonable expectation of privacy at the time of the creation of the depiction.

Assuming that the Katz line applies, then the scope of "reasonable expectation of privacy" narrows. Where the person is at the time the depiction is made becomes of utmost importance. While a depiction made in public is likely not protected, if the person makes the depiction in a bedroom or private space in a home, then there is likely a reasonable expectation of privacy.111 If the person makes a depiction in a car, the situation becomes a closer call, in part due to the windows of the car.112 Furthermore, if the person makes the depiction in a space shared with other people, even if it is a home, there likely is a diminished expectation of privacy.113 Similarly, if they recorded in a barn114 or an open field with no one around,115 the reasonableness of the expectation of privacy may be up for debate at the time of trial. Finally, the method of invading a person’s privacy can determine whether an expectation of privacy is reasonable. For example, the United States Supreme Court has held (by a plurality in the case of a helicopter) that a person had no reasonable expectation of privacy from inspection of property that requires no physical invasion, and thus, there is no reasonable expectation of privacy against a police helicopter or plane flying over a fenced-in yard and taking photographs.116 The Katz rabbit hole contains over fifty years of cases outlining the reasonable expectations of privacy in various settings and contexts and may serve as a fertile ground for analogies and analysis on whether the victim, at the time of the depiction’s creation, had a reasonable expectation of privacy. A court may also decide that the reasonable expectation of privacy analysis need not be bound by Katz, and instead, find that the difference in actor (private instead of governmental), means that the expectation of the person who makes the depiction may be reasonable against one actor but not against the other.

Before moving on, there is another wrinkle to consider: the Internet. This article has focused on examples where the 46

The Journal of the Kansas Bar Association

person makes the depiction in an offline or physical manner, but that is not the only method to create a depiction. Sexting—the transmission of nude or sexual media between partners—is common and can lead to nonconsensual distribution of those images.117 Sexting involves the creation of an image or other digital file depicting sexual content and the transmission of that depiction to another person via the Internet or some other electronic communication method. The transmission of an otherwise private image in this manner presents another major issue: does the creator of the media have a reasonable expectation of privacy when he or she transmits the media over a digital method? Think about how that media file transmits from creator to recipient. First, the creator makes the media file and saves it in some fashion on a computer, cell phone, or other device. At this point, there is likely to be a reasonable expectation of privacy as to the device.118 To deliver the file to the intended recipient, the creator will send the file, in the simplest case, to the recipient’s device.119 Through that process, the file will wind its way through multiple entities before it reaches the intended recipient.120 Thus, at any stage along the transmission, the creator’s expectation of privacy in the file, in theory, is diminished and could be lost.

Consider this example. Two men are in a romantic relationship. Man A decides to send a nude photo to Man B through the text-messaging app on his cell phone. Man A has FakeMobile as his cell service provider, and Man B has Horizon.

When Man A sends the photo, his cell phone transmits the photo to the nearest cell phone tower and then to a centralized location for Fake-Mobile.121 Fake-Mobile then sends this photo over the Internet to Horizon's centralized location.122 Along the way, the photo may pass from one Internet service provider to another until it reaches Horizon.123 Horizon then passes the photo to Man B, and the photo is saved, at least temporarily, onto Man B's device.

Under the third-party doctrine established from the Katz line of case, Man A may have lost any expectation of privacy he had in the photo. Man A has no reasonable expectation of privacy in information he voluntarily conveys to a thirdparty,124 so the simple act of sending the photo to Man B may defeat any reasonable expectation of privacy claim he could make. Furthermore, the mere act of transmitting the photo through the hands of numerous service providers may have defeated Man A's privacy considerations, though this is an ongoing legal issue that is not yet resolved.125 K.S.A. 21-6101(a) (8) requires proof that the creator had a reasonable expectation of privacy at the time the depiction was produced.126 Thus, there is an open question of whether Man A, in the example above, had a reasonable expectation of privacy when he created the depiction to transmit it to a third party.127 iii. Other Statutory Considerations

There are a few other minor potential problems for prosecutors using the new statute. First, the statute requires a showing

etched in digital stone

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

that the defendant disseminated a "videotape, photograph, film, or image."128 This language is specific, and does not include anything to indicate that the list is not intended to be exhaustive.129 Kansas courts must interpret statutes by their plain language first, and may only resort to statutory interpretation when the language is unclear or ambiguous.130 The language of "a videotape, photograph, film, or image" is clear, but it may be too limiting to protect victims. For example, the statute does not prohibit the distribution of audio recordings or text messages, although both may be just as damaging to a victim as a visual depiction of an intimate moment. Furthermore, defendants may try to argue that the statute does not prohibit the distribution of digital video recordings that do not use film or tape. Unlike K.S.A. 21-6101(a)(6) or K.S.A. 21-5611, the nonconsensual distribution statute does not, on its face, seem to consider digital recordings or reproductions, and a defendant may argue that distribution of cell phone footage is not prohibited. Such videos likely would fit under the "image" prohibition, but this could be a point of contention in prosecutions.

Next, the statute does not define or explain what is meant by “identifiable.” While this issue may be easy enough to resolve if the victim is willing to testify that they are in fact depicted in the media, as is discussed in Part IV, victims are not always so willing to identify themselves as the person in a sexual depiction. Furthermore, the statute does not clarify whether identifiability must be discerned from the media alone or if the victim may also be identified by the surrounding context of the media. For example, if Woman A takes a photo of herself with her face covered and with no distinctive marks on her body, is the photo sufficiently “identifiable” if the photo is posted with the Woman’s name? This issue may be a source of deep contention by individuals prosecuted under this statute.

Finally, the nonconsensual distribution statute requires actual distribution and not just the threat of distribution.131

B. Regional Approaches to Criminalizing Nonconsensual Distribution Kansas is not the only state in the region to criminalize nonconsensual distribution. At the time of this writing, Colorado,134 Oklahoma,135 Iowa,136 and Texas137 have all passed statutes barring nonconsensual distribution.

Missouri138 has not passed specific statutes on nonconsensual distribution, but the same activity may already be criminalized under the state’s harassment statutes.139 Each of these particular approaches are examined in more detail below.140 i. Missouri

As of this writing Missouri has not yet enacted a specific law directly addressing nonconsensual distribution.141 However, the Missouri harassment statutes are broad in scope, and theoretically could be used to pursue perpetrators of nonconsensual distribution.142 Missouri criminal law defines firstdegree harassment as an action, without good cause, “with the purpose to cause emotional distress to another person, and [which] does cause such person to suffer emotional distress.”143 Furthermore, Missouri defines second-degree harassment as an act by a person, without good cause, “with the purpose to cause emotional distress to another person.”144 While the language defining these two crimes is broad, and could theoretically prohibit nonconsensual distribution, there do not appear to be any cases in which the statutes were used to prosecute nonconsensual distribution. A conviction for firstdegree harassment and a second conviction for second-degree harassment carry a sentence “not to exceed four years,” while the initial second-degree conviction carries a maximum sentence of one year.145 The Missouri Legislature is working on implementing a new statute criminalizing the nonconsensual distribution of private sexual images.146 The proposed crime, similar to the Kansas statute, requires that the victim consent to the creation, but not the distribution, of the image. However, there are some key differences between the proposed Missouri law and the Kansas statute. First, the Missouri bill under consideration expressly criminalizes the distribution of a broader class of depictions, defining “image” as “a photograph, film, videowww.ksbar.org | April 2018 47

etched in digital stone

tape, digital recording, or other depiction or portrayal of an object, including a human body.”147 The bill, while also requiring the depictions to be identifiable, defines an identifiable image as one where the person is identifiable in the image itself or from “information displayed in connection with the image.”148 Perhaps the biggest differences, however, are in the privacy and the mens rea components. The Missouri bill avoids the reasonable expectation of privacy language and instead focuses on the method the offender used to initially acquire the depiction.149 The bill requires a prosecutor to prove that the offender “[o]btain[ed] the image under circumstances in which a reasonable person would know or understand that the image was to remain private....”150 This language focuses on the offender’s knowledge of the depiction’s creation (which may carry its own problems), rather than requiring an examination of the victim’s intent and expectations.

Finally, the proposed language has a general, rather than specific, intent element, as it requires that the offender knew or should have known that they did not have permission to distribute the image.151 This avoids most of the debate about the motive of the offender in distributing the image.

At the time of this writing, the bill has passed the Missouri House of Representatives and is awaiting action in the Missouri Senate.152 It is unclear at the time of this writing whether the bill will ultimately become law. ii. Colorado

On May 29, 2014, Colorado Governor John Hickenlooper signed into law HB 14-1378, an act concerning prohibiting the posting of a private image on social media without consent to cause serious emotional distress.153 The bill established two new criminal statutes and two civil causes of action.154 COLO. REV. STAT. § 18-7-107 criminalizes nonconsensual distribution for harassment purposes, while COLO. REV. STAT. § 18-7-108 criminalizes the same behavior when the offender intended to obtain a pecuniary benefit from anyone as a result of the distribution.155 Both statutes also create a civil cause of action against the offender.156 48

The Journal of the Kansas Bar Association

The elements of the Colorado crime differ substantially from the Kansas statute. The specific intent element of the Colorado harassment crime, which requires the distribution of a depiction, “[w]ith the intent to harass the depicted person and inflict serious emotional distress upon the depicted person,” requires additional evidence of the intent to cause emotional harm.157 Furthermore, the pecuniary statute, which requires that the offender act “with the intent to obtain a pecuniary benefit from any person as a result of the posting, viewing, or removal of the private image,” is more limited than the Kansas blackmail statute, as the Kansas statute covers both pecuniary gain as well as gains from forcing someone to act against their will.158 The Colorado statutes further limit the criminalized behavior to the distribution of a depiction through social media or a website.159 Thus, while any distribution is outlawed in Kansas, distribution on a physical medium is not covered by the Colorado nonconsensual distribution statutes. The Colorado statutes further require the depiction to depict a person’s “private intimate parts.”160 In contrast to Kansas, the Colorado statutes have broader definitions of the depiction element, including depictions in the form of “any photograph, video, or other image.”161 Finally, the Colorado statutes, similar to the Missouri bill, focus on whether the offender knew or should have known that the “depicted person had a reasonable expectation that the image would remain private.”162 Both Colorado crimes carry misdemeanor sentences, with maximum sentences of eighteen months imprisonment and a $10,000 fine.163 While the Colorado statutes were welcomed with much fanfare,164 the exact impact remains unclear. A recent analysis by the Denver Post revealed that, as of September 24, 2017, prosecutors in the state had brought 192 misdemeanor charges under the new statutes, but only around one-third of those charges had produced convictions.165 What’s more, the same report indicates that none of the victims had yet utilized the civil cause of action, which could lead to awards of at least $10,000 in damages for the victim.166 iii. Oklahoma

Oklahoma passed SB 1257, outlawing the nonconsensual dissemination of certain images, on May 5, 2016. The Oklahoma statute addresses many of the above-outlined concerns with the Kansas statute. Oklahoma, like many of the states, defines “image” broadly to include, “a photograph, film, videotape, digital recording or other depiction or portrayal of an object, including a human body.”168 The act criminalized the nonconsensual distribution of depictions of an individual who was engaged in a sexual act or “whose private parts are exposed, in whole or in part,” and who was identifiable by the image or the “information displayed in connection with the image.”169

etched in digital stone

As in Kansas, the Oklahoma statute contains a specific intent element requiring proof that the offender intended “to harass, intimidate or coerce the person....”170 But unlike Kansas, the specific intent element also allows a showing that the offender was “under circumstances in which a reasonable person would know or understand that dissemination of the image would harass, intimidate or coerce the person.”171 Furthermore, the statute also uses the potentially broader “remain private” language found in Colorado and in the Missouri bill.172 In a unique move, the state expressly grants the courts the authority to order the defendant to remove the distributed depiction if the defendant has the power to do so, though the statute does not specify from where or how the defendant is to remove the depiction.173 A conviction under this statute is classified as a misdemeanor, with a maximum sentence of one year imprisonment in the county jail and a $1,000 fine.174 iv. Iowa

In July 2017, Iowa’s nonconsensual distribution statute took effect.175 Iowa added nonconsensual distribution to its existing harassment statute as an alternate means for committing the crime.176 As in most of the other states, Iowa’s statute includes a specific intent element, requiring the offender to act “with intent to intimidate, annoy, or alarm,” the victim.177 The Iowa law, however, has some significant differences. First, the law does not require the victim to be identifiable in the depiction. Second, unlike most of the other states in the region, Iowa does not require the victim to be over 18 years old. This has led some to worry that that statute will sweep up teens who sext each other.178 Interestingly, the law does not consider the reasonable expectation of privacy of the victim at the time the depiction was created. Instead, the law takes an inverse approach and excludes any depiction made “in public or commercial settings.”179 This may, in practice, lead to the same analysis of whether the victim had a reasonable expectation of privacy when the depiction was created, but the difference in structure shifts the burden of determining privacy. In Kansas, the state must prove that the victim had a reasonable expectation of privacy.180 In Iowa, it seems the defendant must argue that the victim created the depiction in public to exclude the application of the law.

Finally, a violation of the Iowa law is considered first-degree harassment, which is an aggravated misdemeanor.181 Defendants convicted under this law face up to two years of prison and fine between $625 and $6,250.182 v. Texas

In June 2015, after intercession by victims of nonconsensual distribution and victim’s rights advocates, Texas Governor Greg Abbott signed SB 1135 into law.183 As in the Colorado law, the Texas bill created a civil cause of action along with the criminal prohibition of nonconsensual distribution.184 The

Texas criminal statute, like Missouri’s first-degree harassment, has the fairly unusual requirement that the victim suffer actual harm.185 Furthermore, the statute includes similar “remain private” language found in other statutes.186 Other elements of the statute, however, are somewhat broader and more encompassing than those of other state statutes examined herein.187 Texas uses the term “visual material” to describe the victim’s depiction, and the term is defined as:

“(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

“(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.”188 Likewise, the statute, which requires that the victim be identifiable in the depiction, defines the identifiability element to include accompanying or subsequent information and information provided by a third-party in response to the distribution of the depiction.189 The criminal statute also incorporates a blackmail component, though the Texas crime is more similar to the Colorado pecuniary statute than to the Kansas blackmail statute.190 Texas also goes beyond most other states by expressly targeting “promoters” of nonconsensual distributions, who “procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise” nonconsensual distributions.191 This seems to target revenge porn businesses, which profit from the purchase and sale of nonconsensual pornography.

Finally, the statute classifies all offenses as state jail felonies, which carry a sentence of between 180 days to 2 years in a state jail, with a fine of not more than $10,000.192

IV. The Struggle to Protect Nonconsensual Distribution Victims While the majority of this article is dedicated to the criminal law approach to protecting nonconsensual distribution victims in Kansas and the region, that approach represents only part of the picture. Victims of nonconsensual distribution have some alternatives to seek redress. However, as is discussed below, these alternative approaches are awash in difficulties, limitations, and barriers to access, such that they may not provide the hoped-for comfort or relief. Furthermore, similar to many other harassment and domestic abuse accusations, victims of nonconsensual distribution face societal hurdles before any remedy or criminal conviction can be sought.

This part will examine those impediments to relief.

www.ksbar.org | April 2018 49

etched in digital stone

A. Limitations of Alternate Remedies As mentioned, victims of nonconsensual distribution may be able to seek noncriminal relief from offenders, provided they have the resources to pursue the appropriate cause of action.193 Victims, depending on the jurisdiction, have a variety of tort remedies that provide the ability to recover damages from the offender.194 Furthermore, victims may be able to claim copyright in the depictions, and thus, have remedies under various copyright laws.195 Finally, victims may find some relief if the state offers specific protection or restraining orders.196 The benefits and limitations of these options are discussed below. i.

Tort Remedies

As this article mentioned in Part II, privacy law began with the recognition of private causes of action against the invasion of privacy.197 A victim has a variety of potential tort actions from general tort law, including intentional infliction of emotional distress, false light, defamation, public disclosure of private facts, appropriation of an individual’s likeness, and intrusion on seclusion.198 If the victim is in a state such as Texas or Colorado, they may even have specific state-based tort claims available.199 Each of these theories are fact specific and whether a victim of nonconsensual distribution finds relief will depend on the implementation of these torts in a particular jurisdiction.

Some victims have found success seeking compensatory damages under tort law.200 Victims may also be able to recover punitive and injunctive relief on top of compensatory damages.201 However, like any civil case, pursuing damages can be costly and time consuming.202 Furthermore, plaintiffs must typically use their real names, which exposes the victim’s intimate depictions to further publicity unless the court is willing and able to seal the proceedings.203 Defendants in these types of civil cases also have access to the traditional privacy tort claim defenses, such as truth or the lack of a reasonable expectation of privacy.204 Finally, while damages and injunctive relief are helpful, defendants are often judgment proof due to the lack of resources or lack of ability to remove the intimate depictions from certain publication platforms.205 ii. Copyright

Victims also may find some relief in the realm of copyright law. Federal copyright law provides copyright owners the right to submit a take-down notice to individuals publishing copyright-protected material, provided the owner has registered the copyright.206 If the victim of nonconsensual distribution owns the copyright of the depiction,207 the victim owns the rights of distribution and reproduction of their depiction, and thus, any individual distributing the depiction without authorization is violating copyright law.208 However, determining ownership of the depiction may be difficult if the subject of the depiction did not personally create the depiction or if the 50

The Journal of the Kansas Bar Association

depiction includes more than one person. Determining ownership of the depiction likely will subject the depiction, and thereby the victim, to greater scrutiny and may exacerbate the emotional or reputational damage from the distribution.

Copyright law, however, is likely not much relief for nonconsensual distribution victims. Copyright law can be complicated, and utilizing the self-help features of the law can be onerous for a victim dealing with the fallout from nonconsensual distribution.209 Attempting to take down photos can develop into a perverse game of whack-a-mole, as the photos move from one website to another, consuming the victim’s time, energy, and resources.210 And if the website does not respect the take-down notice, the only recourse is a civil suit, with all the financial and time investments required as described above.211 iii. Protective and Restraining Orders

Victims may also try to seek protection under some form of a protective order. In states such as Texas212 and Vermont,213 the nonconsensual distribution statutes allow the victim to seek restraining orders to prevent the distribution of nonconsensual pornography. Options such as temporary restraining orders may also be available, depending on the jurisdiction and the factual nature of the case.214 Victims have won this type of relief in some circumstances.215 However, even with a restraining order, the offender, or third-parties who already had acquired the depictions, may continue to distribute the depictions, continuing to hurt the victim. That requires the victim to actively seek enforcement of the order. Furthermore, to transition from a temporary to a permanent restraining order will likely involve attorney’s fees, which increases the costs and time commitment to protect the victim.

For any of those alternate relief approaches, if the victim does not have the resources, time, or knowledge to privately enforce their rights, they will find no relief. Furthermore, each of those approaches take time before the depictions will be removed. As the depictions remain public and in circulation, the victim continues to face risk of external injury to reputation and risk of physical and mental injury.

B. The Reluctant Reporter In Part III, one of the potential issues identified with the Kansas law was the requirement that the victim be identifiable in the depiction.216 While this article is focused on nonconsensual distribution specifically, victims of nonconsensual distribution experience similar societal and emotional damage as those found in sexual harassment and domestic violence cases.217 Victims of nonconsensual distribution face sexual harassment and threats of physical harm, economic losses due to employers avoiding individuals targeted by nonconsensual distribution, and increases in stress, depression, and anxiety.218 Victims often withdraw from society and feel isolated from their communities.219

etched in digital stone

Victims almost certainly face the above consequences should they report the nonconsensual distribution.220 To do so ends up highlighting the existence of the depiction and thus drawing attention to it when it otherwise might have had a limited or no impact. The Kansas statute may amplify this reluctance further due to the vague identifiability requirement. For example, imagine a situation where Woman A and Woman B are in a relationship but hid this information from the rest of the community. The couple makes an intimate video in Woman A’s bedroom. The video does not record either woman’s face, but a distinct piece of art is clearly visible, as is a distinct birthmark visible on Woman A’s body. Woman B then posts the video online to harass Woman A, without Woman A’s consent, but the video does not list the names of either woman.

Woman A would be able to identify herself based on the art and the birthmark, as would a few close friends and relatives; however, the rest of Woman A’s community would not be able to identify her from the video. Woman A is now presented with difficult questions: does she ignore the video and hope that the handful of people who could recognize her do not see it, or does she report the video and reveal both her relationship and the video’s existence to the community at large? If she spoke with an attorney, what should the attorney advise as the best course of action? When faced with a reluctant reporter, practitioners and prosecutors may need to consider how to best resolve each victim’s dilemma.

C. Etched in Digital Stone Finally, a consideration that may seem obvious but is worth stating: the internet never forgets.221 The ubiquitous and instantaneous nature of the internet has led to an environment that is hard to regulate and impossible to tame. Files are hosted, downloaded, and re-hosted in a blink of an eye, and this is all-too-true for victims of nonconsensual distribution.

Victims can fight to limit the damage, but there is no way to guarantee that an image will be forever removed from the internet.222

Tech companies, however, are trying to offer the next best thing. Google offers a mechanism to allow victims to remove nonconsensual pornography links from search results, making it more difficult to find the depictions with Google and disassociating the depiction from the victim’s identity.223 Facebook is also experimenting with new technologies to automatically prevent the distribution of nonconsensual pornography through its platforms.224 Furthermore, one of the largest pornography websites is taking steps to make it easier for victims to identify and remove nonconsensual distributions.225 While these advancements are helpful, due to the distributed nature of the internet, it is impossible to ensure that every copy of a depiction is removed from all servers. Still, Kansas practitioners should be aware of these options to assist victims of nonconsensual distribution regain control of their depictions.

V. Conclusion Kansas has taken a strong first step in addressing nonconsensual distribution. The criminal statute offers significant punishment for damaged victims; however, prosecutions under the new crime face hurdles due to the specific intent and privacy elements. While the statute is comparable to those found in other nearby states, the Kansas law has unique quirks. Yet, the emotional and social damage caused by nonconsensual distribution, combined with the limitations of the noncriminal remedies, may result in few prosecutions and victims being reluctant to report. Any attorney working on nonconsensual distribution cases should be aware of the difficulty associated with prosecution, the pitfalls (both actual and potential) that victims face, and the noncriminal remedies available to victims as they attempt to regain normalcy. n

About the Author Christopher Teters graduated from the University of Kansas School of Law in 2016. During law school, he served as the Executive Articles Editor on Volume 25 of the Kansas Journal of Law and Public Policy. Since graduation, Christopher has worked as a research attorney for the Hon. David E. Bruns of the Kansas Court of Appeals. He is grateful for Richard Ralls of the KBA Board of Editors and for his friends, family, and colleagues for their edits and comments during the drafting of this article. He also thanks Judge Bruns for his encouragement to seek out this writing opportunity. christopher.teters@gmail.com

www.ksbar.org | April 2018 51

etched in digital stone

1. See Danielle Keats Citron and Mary Anne Franks, Criminalizing Revenge Porn, 39 Wake Forest L. Rev. 345, 346 (2014); see also Ari Ezra Waldman, A Breach of Trust: Fighting Nonconsensual Pornography, 102 IOWA L. REV. 709 (2016); and Alexandrea Scott, What is Nonconsensual Pornography, NAT’L COUNCIL OF JUV. & FAM. CT. JUDGES (Feb. 21, 2017), https://www.ncjfcj.org/TDVAM-Scott.

2. For the purposes of this article, depiction shall mean any image, set of images, photograph, video, or audio recording, in which a person is shown or displayed.

3. Citron and Franks, supra note 1, at 346. However, for a discussion about why Citron and Frank’s broad definition may be inappropriate when drafting criminal legislation, see SCOTT R. STROUD AND JONATHAN HENSON, What is Revenge Porn or Nonconsensual Pornography?, IN “SOCIAL MEDIA, ONLINE SHARING, AND THE ETHICAL COMPLEXITY OF CONSENT IN REVENGE PORN,” ONLINE CONSUMER BEHAVIOR: THE DARK SIDE OF SOCIAL MEDIA (Angeline Close Scheinbaum ed., forthcoming publication), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828740.

4. Dan Kedmey, Hackers Leak Explicit Photos of More than 100 Celebrities, TIME (Sept. 1, 2014), http://time.com/3246562/hackers-jenniferlawrence-cloud-data/ (last visited Mar. 12, 2018).

5. Bill Chappell, Charges Filed Against ‘Playboy’ Model Who BodyShamed Woman at Gym, NPR (Nov. 5, 2016), http://www.npr.org/sections/thetwo-way/2016/11/05/500831536/charges-filed-against-playboymodel-who-body-shamed-woman-at-gym.

6. Richard Winton, Revenge Porn? Rob Kardashian Posts Sexually Explicit Images Supposedly of Blac Chyna on Social Media, L.A. TIMES (July 6, 2017), http://www.latimes.com/local/lanow/la-me-ln-revenge-pornkardashian-20170705-story.html.

7. Jesse J. Holland, Some Marines Being Investigated for Sharing Nude Photos, AP (Mar. 6, 2017), https://apnews.com/86e13c2d0afd4 798abbae31336c3333b/Some-Marines-being-investigated-for-sharingnude-photos?utm_campaign=SocialFlow&utm_source=Twitter&utm_ medium=AP. 8. See Citron and Franks, supra note 1, at 351-52.

9. Id. at 357-60.

10. Id. at 346.

11. Id. at 347.

12. Margot E. Kaminski, Regulating Real-World Surveillance, 90 WASH. L. REV. 1113, 1145-46 (2015).

13. Citron and Franks, supra note 1, at 346.

14. Kyarra Harris, Love, Sext, Magic: The Good and Bad Views of Sexting, THE CRIMSON WHITE (Sept. 26, 2016 at 12:06pm), http://www.cw.ua. edu/article/2016/09/sexting-feature?platform=hootsuite.

15. Robert S. Weisskirch et al., Relational Anxiety and Sexting, 54 J. SEX RESEARCH 685, 690 (2016).

16. Citron and Franks, supra note 1, at 371 (noting that as of 2014, only six states criminalized the disclosure of consensually generated intimate images).

17. 38 States + DC Have Revenge Porn Laws, CYBER CIVIL RIGHTS INITIATIVE, https://www.cybercivilrights.org/revenge-porn-laws/.

18. Bryan Lowry, Brownback Signs Bill Outlawing “Revenge Porn”, WICHITA EAGLE (May 18, 2016), http://www.kansas.com/news/politicsgovernment/article78430247.html.

19. See e.g., Erin Corken, The Changing Expectation of Privacy: Keeping Up With the Millennial Generation and Looking Toward the Future, 42 N. Ky. L. Rev. 287, 289-91 (2015). .

20. See e.g., Bernie Sanders on Privacy & Digital Rights, FEEL THE BERN, http://feelthebern.org/bernie-sanders-on-privacy-and-digital-rights/.

21. See e.g., Kimberly Kindy, How Congress Dismantled Federal Internet Privacy Rules, WASH. POST (May 30, 2017), https://www.washingtonpost.com/politics/how-congress-dismantled-federal-internet-privacyrules/2017/05/29/7ad06e14-2f5b-11e7-8674-437ddb6e813e_story. html?utm_term=.c4519d8a0b20.

52

The Journal of the Kansas Bar Association

22. Samuel D. Warren and Louis D. Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). While early Americans certainly recognized some privacy concepts, such as privacy of the mail, legal scholars often point to Warren and Brandeis’ article as the birth of the “right of privacy” concept. See Vernon Valentine Palmer, Three Milestones in the History of Privacy in the United States, 26 Tul. Eur. & Civ. L.F. 67, 70-71 (2011); and Daniel J. Solove, A Brief History of Information Privacy Law, in PROSKAUER ON PRIVACY 1-10 to 1-11 (Christopher Wolf ed., 2006), http:// scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2076&context=facu lty_publications.

23. Solove, supra note 22, at 1-4 to 1-5.

24. Id.; Palmer, supra note 22, at 71-72.

25. Solove, supra note 22, at 1-6 to 1-7. Solove notes that, despite this early statute, mail in America was not always secure. Congress was required to act again in 1825 by passing an additional statute making it clearer that tampering with the mail was a federal crime. Id. at 1-7.

26. Note, The Right of Privacy in Nineteenth Century America, 94 Harv.

L. Rev. 1892, 1901 (1981).

27. GINA MARIE STEVENS AND CHARLES DOYLE, CONG. RESEARCH SERV., R.7-5700, PRIVACY: AN OVERVIEW OF FEDERAL STATUTES GOVERNING WIRETAPPING AND ELECTRONIC EAVESDROPPING 2 (2009).

28. Id. 29. Palmer, supra note 22, at 70-71.

30. See generally Warren and Brandeis, supra note 22; Palmer, supra note 22, 75-77.

31. Warren and Brandeis, supra note 22, at 195. “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

32. See generally, Palmer, supra note 22, 75-80.

33. William L. Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960).

34. Id. 35. See Palmer, supra note 22, at 82-85.

36. Id. at 91-92.

37. Id. at 93-96; see Corken, supra note 19, at 289-91.

38. 381 U.S. 479 (1965) (articulating the “zones of privacy” found in the penumbras of the Bill of Rights).

39. 389 U.S. 347 (1967) (establishing, in Justice Harlan’s concurring opinion, the “reasonable expectation of privacy” distinction in fourth amendment cases).

40. 410 U.S. 113 (1973) (finding that the right to an abortion exists as an extension of a woman’s right of privacy).

41. Corken, supra note 19, at 290-303.

42. See e.g., Jason M. Breslow, With or Without the Patriot Act, Here’s How the NSA Can Still Spy on Americans, PBS (June 1, 2015), http://www. pbs.org/wgbh/frontline/article/with-or-without-the-patriot-act-hereshow-the-nsa-can-still-spy-on-americans/.

43. See e.g., Adam Liptak, Supreme Court Agrees to Hear Cellphone Tracking Case, N.Y. TIMES (June 5, 2017), https://www.nytimes. com/2017/06/05/us/politics/supreme-court-cellphone-tracking.html.

44. See e.g., Edward Snowden: Leaks that Exposed US Spy Programme, BBC (Jan. 17, 2014), http://www.bbc.com/news/world-us-canada-23123964.

45. KAN. TERR. STAT. 1855, ch. 53, §40-42.

46. Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918).

47. J. Lyn Entrikin, “The Right to be Let Alone: The Kansas Right of Privacy,” 53 WASHBURN L.J. 207, 214–15 (2014).

48. K.S.A. 21-6101.

49. K.S.A. 21-6101(a)(8).

50. H.B. 2501, 2015-2016 Leg., 2016 Gen. Sess. (2016) (as introduced Jan. 21, 2016).

51. H. JOURNAL, 2015-2016 Leg., 2016 Gen. Sess. 2091–93 (2016);

etched in digital stone

http://www.kslegislature.org/li_2016/b2015_16/measures/documents/ fa_2016_hb2501_h_3542.pdf (last visited Mar. 12, 2018).

52. HB 2501, KS LEGISLATURE, 2015-2016 LEGISLATIVE SESSION, http://www.kslegislature.org/li_2016/b2015_16/measures/hb2501/ (last visited Mar. 12, 2018).

53. S. JOURNAL, 2015-2016 Leg., 2016 Gen. Sess., 2046 (2016); http://www.kslegislature.org/li_2016/b2015_16/measures/documents/ cr_2016_hb2501_s_3880.pdf (last visited Mar. 12, 2018) (the senate amendments added a requirement that the offender have a specific intent while committing the crime and that the victim had a reasonable expectation of privacy when the depictions were created).

54. Supra note 52.

55. Id. Johnson County, Kansas, has already charged someone under the new statute. Melissa Stern, Revenge Porn Victim Says She’s Embarrassed, Feels Betrayed as Merriam Man Faces Felony Charge, FOX4KC.COM (July 17, 2017 8:04 p.m.), http://fox4kc.com/2017/07/17/revenge-porn-victim-says-shes-embarrassed-feels-betrayed-as-merriam-man-faces-felonycharge/.

56. Citron and Franks, supra note 1, at 371.

57. CYBER CIVIL RIGHTS INITIATIVE, supra note 17.

58. Id. 59. Steven Nelson, Lawmakers Unveil Proposal to Take Nip Out of Revenge Porn, U.S. NEWS (July 14, 2016 2:07 p.m.), https://www.usnews. com/news/articles/2016-07-14/lawmakers-lay-bare-proposal-to-take-nipout-of-revenge-porn.

60. Hope Hodge Seck, Lawmaker to Introduce Bill Criminalizing Military “Revenge Porn”, MILITARY.COM (Mar. 15, 2017), http://www.military. com/daily-news/2017/03/15/lawmaker-introduce-bill-criminalizing-military-revenge-porn.html.

61. H.R. 5896, 114th Cong. (2015); H.R. 1588, 115th Cong. (2017).

62. Sasha Lekach, ‘Revenge Porn’ Bill Would Criminalize Posting Nude Photos Without Consent Nationwide, MASHABLE (Nov. 28, 2017), http://mashable.com/2017/11/28/revenge-porn-bill-kamalaharris/#aEug9ES0lOqW. 63. Alex Ward, Exposing the Marine Corps’ Revenge Porn Hasn’t Made It Go Away, VOX (July 12, 2017 4:50 p.m.), https://www.vox.com/ world/2017/5/29/15619574/marine-corps-women-sexual-harassment.

64. Jesse J. Holland, Some Marines Being Investigated for Sharing Nude Photos, AP (Mar. 6, 2017), https://apnews.com/86e13c2d0afd4 798abbae31336c3333b/Some-Marines-being-investigated-for-sharingnude-photos?utm_campaign=SocialFlow&utm_source=Twitter&utm_ medium=AP. 65. Ward, supra note 63.

66. Ryan Browne, First Marine Tied to ‘Marines United’ Facebook Group Court-Martialed, CNN (July 10, 2017 5:56 p.m.), http://www.cnn. com/2017/07/10/politics/marines-united-facebook-group-court-martial/ index.html.

67. Leo Shane III, Congress Poised to Outlaw Revenge Porn in the Military, ARMY TIMES (Sept. 20, 2017), https://www.armytimes.com/news/ pentagon-congress/2017/09/20/congress-poised-to-outlaw-revenge-pornin-the-military/.

68. Amy Bushatz, Trump Signs 2018 Defense Bill: Here’s What it Means for You, MILITARY.COM (Dec. 12, 2017), https://www.military.com/dailynews/2017/12/12/trump-signs-defense-bill-heres-what-it-means-you.html.

69. Rick McCormick, Hack Leaks Hundreds of Nude Celebrity Photos, THE VERGE (Sept. 1, 2014 2:29 a.m.), https://www.theverge. com/2014/9/1/6092089/nude-celebrity-hack.

70. Id. 71. Haje Jan Kamps, Prosecutors Find that “Fappening” Celebrity Nudes Leak Was Not Apple’s Fault, TECHCRUNCH (Mar. 15, 2016), https:// techcrunch.com/2016/03/15/prosecutors-find-that-fappening-celebritynudes-leak-was-not-apples-fault/.

72. Victoria Kazz, A Look Into the Aftermath of the iCloud Hack,

CLOUDWARDS.NET (Sept. 18, 2014), https://www.cloudwards.net/a-lookinto-the-aftermath-of-the-icloud-hack/.

73. Justin Wm. Moyer, Apple Stock Plunges Amid Celebrity Hacking, Ahead of Purported iWatch Announcement, WASH. POST (Sept. 4, 2014), https://www.washingtonpost.com/news/morning-mix/wp/2014/09/04/ apple-stock-plunges-amid-celebrity-hacking-ahead-of-purported-iwatchannouncement/?utm_term=.8226df22fdb7.

74. Brent Lang, Celebrities’ Hacked Private Photos Won’t Hurt Their Careers, Experts Say, BOS. HERALD (Sept. 10, 2014), http://www.bostonherald.com/inside_track/celebrity_news/2014/09/celebrities_hacked_private_photos_wont_hurt_their_careers; Allison Grande, Celebs Face Long Odds in Nude-Photo Leak Battle With Apple, LAW360 (Sept. 8, 2014 8:55 p.m.), https://www.mccarter.com/files/Uploads/Documents/Law360CelebsFaceLongOddsPhotoLeakBattleWithApple_9-8-14.pdf.

75. Katrease Stafford, Michigan Woman Gets $500K in Revenge-Porn Case, DETROIT FREE PRESS (Aug. 26, 2016 3:40 p.m.), https://www.usatoday.com/story/news/nation-now/2016/08/26/michigan-revenge-pornverdict/89393884/.

76. Id. 77. Id. 78. Id. 79. KAN. LEG. RESEARCH DEP’T, SUMMARY OF LEGISLATION, CREATING CRIMES REGARDING VISUAL DEPICTION OF A CHILD; AMENDING CRIMES OF BREACH OF PRIVACY AND BLACKMAIL; AMENDING THE DEFINITION OF A CRIME COMMITTED WITH AN ELECTRONIC MONITORING DEVICE; HB 2501 (2016),http://www.kslegislature.org/li_2016/ b2015_16/measures/documents/summary_hb_2501_2016.pdf (last visited Mar. 12, 2018).

80. H.B. 2501, 2015-2016 Leg., 2016 Gen. Sess. § 1-2, 4 (2016).

81. Sexting: Do You Know the Risks?, NHS.UK (Dec. 4, 2016), https:// www.nhs.uk/Livewell/Sexandyoungpeople/Pages/sexting-images-riskyoung-people.aspx.

82. K.S.A. 21-6101(a)(8).

83. Id. 84. K.S.A. 21-6101(b)(2)(A).

85. Actual sentence depends on criminal history and the nature of the crime. K.S.A. 21-6804(a).

86. K.S.A. 21-6101(b)(2)(B).

87. Actual sentence depends on criminal history and the nature of the crime. K.S.A. 21-6804.

88. Supra note 80; K.S.A. 22-4902.

89. K.S.A. 21-6101(a)(6) & (7). K.S.A. 21-6101(a)(6) actually goes further than K.S.A. 21-6101(a)(8), by making the act of recording or installing devices to record the victim a crime.

90. K.S.A. 21-6101(a)(6).

91. K.S.A. 21-6101(a)(8).

92. PIK Crim. 4th 61.032 (2017).

93. K.S.A. 21-5202(h).

94. K.S.A. 21-6101(a)(8).

95. For the federal civil court context, see Danny Cevallos, What Makes Sex Harassment Cases Tough to Win, CNN (July 19, 2014 11:07 a.m.), http://www.cnn.com/2014/07/19/opinion/cevallos-yahoo-sexual-harassment-lawsuit/index.html; United States. v. Infante, 782 F. Supp. 2d 815 (2010); A.B. v. Indiana, 885 N.E.2d 1223, 231 Ed. Law Rep. 921 (Ind. 2008); Ohio v. Ellison, 178 Ohio App. 3d 734, 2008-Ohio-5282, 900 N.E.2d 228 (1st Dist. Hamilton County 2008).

96. K.S.A. 21-5415.

97. K.S.A. 21-5415(a)(1).

98. See State v. Williams, 303 Kan. 750, 368 P.3d 1065 (2016); State v.

Hurd, 298 Kan. 555, 316 P.3d 698 (2013); State v. White, 2016 53 Kan. App. 2d 44, 384 P.3d 13 (2016).

99. K.S.A. 21-6206.

100. K.S.A. 21-6206(a)(1)(B)-(D).

www.ksbar.org | April 2018 53

etched in digital stone

101. K.S.A. 21-5611(b)(1)(A).

102. K.S.A. 21-5611(d).

103. See Intimidation of a Witness, K.S.A. 51-5909(a); Terrorism, K.S.A. 21-5421(a)(1); Criminal Use of an Explosive, K.S.A. 21-5814(a) (2).

104. K.S.A. 21-5205 105. PIK. Crim. 4th 52.060 (2017).

106. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). Justice Harlan, in his famous concurring opinion, outlined the modern twopronged Fourth Amendment reasonable expectation of privacy test.

107. Id. at 361.

108. State v. Gilliland, 294 Kan. 519, 276 P.3d 165 (2012) indirectly applies the Katz line of cases to a case where a prisoner alleged a violation of the breach of privacy statute when his phone calls from within a prison were intercepted. The Court determined that Gilliland consented to the interception of his phone calls, and thus, triggered an exception to the breach of privacy statute. Gilliland, at 537-38. However, the case dealt with a prisoner, and there is a limited expectation of privacy in a prison.

109. 460 U.S. 276, 281, (1983).

110. Knotts, at 281-82.

111. Oliver v. United States, 466 U.S. 170 (1984).

112. See Arizona v. Gant, 556 U.S. 332 (2009); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

113. See Georgia v. Randolf, 547 U.S. 103 (2006). Again, this has more to do with the authority of the police to search a common area, rather than the expectation of privacy directly. But, the implication is that the roommates or others who share a common living space have lowered expectations of privacy against each other in the common areas, and that implication could be used in a Kansas breach of privacy case.

114. United State v. Dunn, 480 U.S. 294 (1987).

115. Id. 116. See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986).

117. Haley Goldberg, Revenge Porn: When Domestic Violence Goes Viral, SELF.COM (Mar. 21, 2017), https://www.self.com/story/revenge-porndomestic-violence.

118. See United States v. Runyan, 275 F.3d 449, 458 (5th Cir. 2001).

119. See Brent Rose, The Crazy Journey of an MMS from Your Phone to Your Friend, GIZMODO (Oct. 9, 2012 2:20 p.m.), https://gizmodo. com/5947906/this-is-how-your-mobile-data-travels-the-world.

120. Id. 121. Id. 122. Id. 123. Jon Brodkin, See Which ISPs Google, Microsoft, and Netflix Trade Internet Traffic With, ARS TECHNICA (May 21, 2014 11:00 a.m.), https:// arstechnica.com/information-technology/2014/05/see-which-ispsgoogle-microsoft-and-netflix-trade-internet-traffic-with/.

124. Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

125. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010); c.f.

United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007). See also Ann K. Wooster, Expectation of Privacy in Discovery of Social Networking Web Site Postings and Communications, 88 A.L.R. 6th 319 (2013).

126. K.S.A. 21-6101(a)(8).

127. These issues are further complicated by the concept of live video streaming. Man A could, in theory, broadcast a live video stream of himself in a sexual context to Man B. Man B could then, during the broadcast, secretly record Man A’s depiction. Man A’s expectation of privacy in this video depiction is likely reduced, but whether his video should be protected is a difficult, fact-specific question.

128. K.S.A. 21-6101(a)(8).

129. Compare with K.S.A. 21-6101(a)(6), "to secretly videotape, film, photograph, or record, by electronic or other means . . . [emphasis added]" and K.S.A. 21-5611, "'visual depiction' means any photograph, film,

54

The Journal of the Kansas Bar Association

video picture, digital or computer-generated image or picture made or produced by electronic, mechanical or other means."

130. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016).

131. K.S.A. 21-6101(a)(8).

132. K.S.A. 21-5428(a)(2).

133. K.S.A. 21-5428(b)(2); K.S.A. 21-6101(b)(2)(A).

134. COLO. REV. STAT. § 18-7-107 & -108 (2017).

135. OKLA. STAT. tit. 21, § 1040.13b (2017).

136. IOWA CODE § 708.7(1) (2017).

137. TEX. PENAL CODE ANN. § 21.16 (2017).

138. Missouri has considered criminalizing nonconsensual pornography, but it has not yet done so. Tessa Weinberg, “Revenge Porn” Bill Receives Renewed Attention Amid Greitens Investigation, KAN. CITY STAR (Jan. 26, 2018 10:38 a.m.), http://www.kansascity.com/news/politics-government/ article196814029.html.

139. MO. REV. STAT. § 565.090 – .091 (2017).

140. Nebraska’s statutes are not reviewed in this article. Nebraska has not passed a specific nonconsensual distribution statute, and the state’s harassment statutes require a pattern of harassment, which likely does not cover the same activity as the other laws discussed in this article. See NEB. REV. STAT. § 28-311.02(2)(a) (2017) & NEB. REV. STAT. § 28-311.03 (2017).

141. Kevin Ko, Lack of Revenge Porn Laws Leave Missouri Victims with Few Options, KOMU (Oct. 3, 2017 5:15 p.m.) http://www.komu.com/ news/lack-of-revenge-porn-laws-leave-missouri-victims-with-few-options.

142. Mo. REV. STAT. § 565.090 – .091 (2017).

143. Mo. REV. STAT. § 565.090(1) (2017).

144. Mo. REV. STAT. § 565.091(1) (2017).

145. Mo. REV. STAT. § 565.090(2) & .091(2) (2017); MO. REV. STAT. § 558.01. The actual sentence a person may receive could be higher than these “maximums” depending on their individual criminal history.

146. H.B. 1558, 99th Gen. Assemb., 2nd Reg. Sess. (Mo. 2018).

147. Id. 148. Id. 149. Id. 150. Id. 151. Id. 152. H.B. 1558, HOUSE.MO.GOV, https://house.mo.gov/Bill.aspx?bill =HB1558&year=2018&code=R (last visited Mar. 12, 2018).

153. Posting Intimate Photos on the Internet, DENVER POST, http://extras.denverpost.com/app/bill-tracker/bills/2014a/hb_14-1378/ (last visited Mar. 12, 2018) [hereinafter Colorado Bill]; David Migoya, Colorado’s Revenge Porn Law Brings Nearly 200 Charges, but Getting Convictions is a Challenge, DENVER POST (Sept. 25, 2017 12:31 p.m), http://www.denverpost.com/2017/09/25/colorados-revenge-porn-law-brings-200-chargesconvictions-challenge/.

154. Colorado Bill, supra note 153.

155. COLO. REV. STAT. § 18-7-107 & -108 (2017).

156. COLO. REV. STAT. § 18-7-107(4) & -108(4) (2017).

157. COLO. REV. STAT. § 18-7-107(1)(a)(I) (2017).

158. Compare COLO. REV. STAT. § 18-7-108(1)(a)(I) (2017); with K.S.A. 21-5428(a)(2).

159. COLO. REV. STAT. § 18-7-107(1)(a) & -108(1)(a) (2017).

160. Id. 161. Id. Distribution of nonconsensual pornography on a physical medium may be covered under Colorado’s obscenity law, but the application of the law to nonconsensual pornography specifically remains unclear.

COLO. REV. STAT. § 18-7-102 (2017).

162. COLO. REV. STAT. § 18-7-107(1)(a)(II)(B) & -108(1)(a)(II)(B) (2017).

163. COLO. REV. STAT. § 18-7-107(1)(b)–(c) & -108(1)(b)–(c); 181.3-501(1)(a) (2017).

164. See Ivan Moreno, Revenge Porn Penalties Among New Colorado Laws,

etched in digital stone

CBS LOCAL (June 30, 2014), http://denver.cbslocal.com/2014/06/30/ revenge-porn-penalties-among-new-colorado-laws/; Ian Farrell et al., Colorado’s New Revenge Porn Statute is Good Law and Sound Policy, HUFFPOST (Aug. 4, 2014 11:25 a.m.), https://www.huffingtonpost.com/ian-farrell/ colorados-new-revenge-por_b_5427703.html.

165. Migoya, supra note 153.

166. Id.; COLO. REV. STAT. § 18-7-107(4) & -108(4) (2017).

167.

OK SB1257, LEGISCAN, https://legiscan.com/OK/bill/ SB1257/2016 (last visited Mar. 12, 2018).

168. OKLA. STAT.. tit. 21, § 1040.13b(A)(1) (2017).

169. OKLA. STAT. tit. 21, § 1040.13b(B)(1)(b) & (c) (2017). Interestingly enough, “intimate parts” is defined as “the fully unclothed, partially unclothed or transparently clothed genitals, pubic area or female adult nipple.”OKLA. STAT.. tit. 21, § 1040.13b(A)(2) (2017). The male adult nipple does not appear to be considered an “intimate part” under the Oklahoma law.

170. OKLA. STAT. tit. 21, § 1040.13b(b)(2) (2017).

171. Id. 172. OKLA. STAT. tit. 21, § 1040.13b(b)(3) (2017).

173. OKLA. STAT tit. 21, § 1040.13b(G) (2017).

174. OKLA. STAT. tit. 21, § 1040.13b(F) (2017).

175. Steffi Lee, Iowans Who Post “Revenge Porn” to Face Harsher Punishments, KCCI (May 27, 2017 2:30 p.m.), http://www.kcci.com/article/ iowans-who-post-revenge-porn-to-face-harsher-punishments/9941808.

176. IOWA CODE § 708.7(1)(a)(5) (2017).

177. IOWA CODE § 708.7(1)(a) (2017).

178. See Karen Thalacker, New “Revenge Porn” Law Could Snag Sexting Teens, DES MOINES REG. (July 11, 2017 6:53 a.m.), http://www. desmoinesregister.com/story/opinion/columnists/iowa-view/2017/07/10/ new-revenge-porn-law-could-snag-sexting-teens/465718001/.

179. IOWA CODE § 708.7(6)(a) (2017).

180. K.S.A. 21-6101(a)(8).

181. IOWA CODE § 708.7(2)(a)(2)(2017).

182. IOWA CODE § 903.1(2) (2017).

183. Liz Crampton, Taking New Steps to Put an End to “Revenge Porn”, TEXAS TRIB. (Aug. 21, 2015 6:00 a.m.), https://www.texastribune. org/2015/08/21/texas-law-criminalizing-revenge-porn-goes-effect/.

184. TEX. PENAL CODE ANN. § 21.16; TEX. CIV. PRAC. & REM. CODE § 98b.001 et seq. (2017).

185. TEX. PENAL CODE ANN. § 21.16(b)(3) (2017).

186. TEX. PENAL CODE ANN. § 21.16(b)(2) (2017).

187. Similar to Oklahoma, the Texas statute defines “intimate parts,” used in the description of the acts depicted in the protected visual material, as, “naked genitals, pubic area, anus, buttocks, or female nipple.” TEX. PENAL CODE ANN. § 21.16(a)(1) (2017).

188. TEX. PENAL CODE ANN. § 21.16(a)(5) (2017).

189. TEX. PENAL CODE ANN. § 21.16(b)(4) (2017).

190. Compare TEX. PENAL CODE ANN. § 21.16(c) (2017), with COLO. REV. STAT. § 18-7-108(1)(a)(I) (2017) and K.S.A. 21-5428(a)(2).

191. TEX. PENAL CODE ANN. § 21.16(a)(2), (d) (2017).

192. TEX. PENAL CODE ANN. §§ 12.35, 21.16(h) (2017).

193. Theodore Z. Wyman, Litigation of Liability for Internet Posting of “Revenge Porn’,” 147 AM. JUR. TRIALS 319 (2016).

194. Id. at § B. 195. Id. at § C. 196. See e.g. Clark v. Maine, 86 A.3d 655, 2014 ME 18 (Me. 2014).

197. Supra Part II. 198. Paul J. Larkin, Jr., Revenge Porn, State Law, and Free Speech, 48 LOY. L.A. L. REV. 57, 76–80 (2014).

199. TEX. CIV. PRAC. & REM. CODE § 98b.001 et seq. (2017); COLO. REV. STAT. § 18-7-107(4) & -108(4) (2017).

200. See Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984); Doe v. Hofstetter, Civil Action No. 11-cv-02209-DME-MJW, 2012

WL 2319052 (D. Colo. June 13, 2012); Taylor v. Franko, Civil No. 0900002, 2011 WL 2746714 (D. Haw. July 12, 2011) (unpublished opinion); Bridgette Dunlap, 3 Ways Revenge Porn is Already Illegal, ROLLING STONE (Sept. 26, 2016), http://www.rollingstone.com/culture/news/3ways-revenge-porn-is-already-illegal-w441928.

201. See Doe, 2012 WL 2319052, and Taylor, 2011 WL 2746714.

202. Citron and Franks, supra note 1, at 358–59.

203. Id. 204. Larkin, supra note 198, at 80–83.

205. Citron and Franks, supra note 1, at 358–59.

206. 17 U.S.C. § 512(c) (2012).

207. This may not always be clear. If the victim created the depiction on their own, he or she likely has sole copyright ownership in the depiction. 17 U.S.C. § 102(a)(5) & 201(a) (2012). However, if the depiction was made with a partner, or the partner created the depiction, the victim likely has either a shared copyright interest or no interest in the depiction at all.

208. Katlyn M. Brady, Revenge in the Modern Times: The Necessity of a Federal Law Criminalizing Revenge Porn, 28 HASTING WOMEN’S L.J. 3, 17-18 (2017).

209. Id., at 18–19.

210. Id. at 19.

211. Id.; Citron and Franks, supra note 1, at 359–60.

212. TEX. CIV. PRAC. & REM. CODE § 98b.004(a) (2017).

213. VT. STAT. AN. TIT. 13, § 2606(e) (2017).

214. See K.S.A. 60-903 (2017).

215. See Elahe Izadi, “Total Victory”: Blac Chyna Granted Restraining Order After Rob Kardashian Posted Explicit Photos, WASH. POST (July 10, 2017), https://www.washingtonpost.com/news/arts-and-entertainment/ wp/2017/07/10/blac-chyna-devastated-after-rob-kardashian-posted-explicit-photos-online-files-restraining-order/?utm_term=.366703b1fa11; c.f. Venkat Balasubramani, Court Denies Restraining Order Against ExBoyfriend Who Threatened to Post Revenge Porn – EC v. CBT, TECHNOLOGY & MARKETING LAW BLOG (May 24, 2013), http://blog.ericgoldman.org/ archives/2013/05/court_denies_re.htm.

216. Supra, Part III(A)(iii).

217. Citron and Franks, supra note 1, at 347.

218. Id. at 347–52.

219. Id. at 352.

220. Id. at 358; Law Students’ “Revenge Porn” Bill Would Protect Victim Privacy, UNIV. OF THE PACIFIC (June 16, 2014), http://www.pacific. edu/About-Pacific/Newsroom/2014/May-August-2014/Law-studentsrevenge-porn-bill-would-protect-victim-privacy.html.

221. David Siesage, Puking in a Loo? Silly Drunken Tweet? Lock Up Your Social media Accounts Otherwise It’ll Come Back To Haunt You, Argues David Siesage, INDEPENDENT.CO.UK (Aug. 28, 2013), http://www.independent.co.uk/student/istudents/the-internet-never-forgets-so-be-carefulwhat-you-put-on-it-8787706.html.

222. Charlotte Alter, “It’s Like having an Incurable Disease”: Inside the Fight Against Revenge Porn, TIME (June 13, 2017), http://time. com/4811561/revenge-porn/.

223. Jeff John Roberts, Google to Remove “Revenge Porn” Links at Victim’s Request, FORTUNE (June 19, 2015), http://fortune.com/2015/06/19/ google-revenge-porn-removal/.

224. Megan Rose Dickey, Facebook’s testing a New Method to Prevent Revenge Porn that Requires Uploading your Nudes, TECHCRUNCH (Nov. 7, 2017), https://techcrunch.com/2017/11/07/facebook-revenge-porn-strategy-involes-sending-nudes-to-self/; Megan Rose Dickey, Facebook Addresses Revenge Porn with Tech to Prevent People from Re-Sharing Intimate Images, TECHCRUNCH (Apr. 5, 2017), https://techcrunch.com/2017/04/05/ facebook-addresses-revenge-porn-with-tech-to-prevent-people-from-reshaing-intimate-images/.

225. David Moye, Pornhub Makes it Easier to Remove Revenge Porn, HUFFPOST (Oct. 14, 2015 6:40 p.m.), https://www.huffingtonpost.com/ entry/pornhub-revenge-porn-removal_us_561eb29fe4b0c5a1ce61bf3f.

www.ksbar.org | April 2018 55

members in the news

Members in the News

New Positions Richard Buck was elected Interim County Attorney for Ottawa County due to the resignation of Jason Parks, who left the position on March 2. Buck is a graduate of Kansas State University and of the Washburn University School of Law. He is experienced in working with juvenile offenders and as assisted the Ottawa Co. Attorney’s office in the past.

Remington Dalke became Rice County Attorney but will continue to work a second job with Bush, Bush and Shanelec.

Jorge De Hoyos has joined Patterson Legal Group.

Jason Gorden joined Mann Conroy Law Firm in February 2018 to head up the firm’s patent practice and deepen the firm’s technology practice. A computer engineering graduate of the University of Missouri-Columbia, Gorden earned his juris doctor from the University of Missouri-Columbia School of Law. He brings to the firm more than 15 years of experience in complex intellectual property issues.

Michael E. Griffin has joined the law firm of McDowell Rice Smith & Buchanan, PC, as a shareholder. Griffin is a member of the firm’s Corporate and Business Transactions Group, Tax Law Group, and Wills, Trusts & Estate Planning Group; he brings more than 25 years of experience in these practice areas. Griffin graduated from Loyola University with a B.A. in English and obtained his J.D., with distinction, from The University of Missouri-Kansas City, School of Law. Lynn Koehn was appointed city attorney for Liberal in February. Koehn also serves as county attorney for Haskell County and city attorney for Sublette, Satanta and Copeland. Before earning his juris doctor at the University of South Dakota and passing the bar in Kansas, Koehn had plans to become a chiropractor. But after his first semester at Fort Hays State, he changed his plan and majored in criminal justice, which has served him well.

56

The Journal of the Kansas Bar Association

Bryant Parker joined Klenda Austerman Law Firm. His areas of expertise include city planning, zoning, growth and economic development.

Evan Rosell, a graduate of Baylor University with a law degree from the Washburn University School of Law, and former chief of staff for Missouri Attorney General Josh Hawley, has accepted the position of lead staff for Project Wichita.

Project Wichita is an effort of the Greater Wichita Partnership to develop a 10-year plan for the city. Rosell is a native of Wichita. His wife, Jessica is also an attorney, and they have three small boys.

New Locations Adam Jones Law Firm, P.A., based in Wichita, has opened an office in El Dorado at 112 N. Star. Shareholder attorney Jason Reed staffs the office and handles probate, estate planning, real estate transactions and general business transactions.

John M. Parisi announced the opening of The Parisi Law Firm at 7944 Santa Fe Drive in Overland Park, Kan. 66204.

Parisi’s practice focuses primarily on plaintiff’s personal injury law. A graduate of the University of Missouri-Kansas City School of Law, John has been listed in Best Lawyers since 2010 and has been selected to Super Lawyers every year since 2005.

Notables The law firms of Baker Sterchi Cowden & Rice (BSCR) and Williams Venker & Sanders (WVS) are pleased to announce their merger effective July 1, 2018.

The merged firm will continue to be known as Baker Sterchi Cowden & Rice and will be headquartered in Kansas City, Missouri. Scott Kreamer will remain Managing Member, re-

members in the news

sponsible for the day-to-day operations and long-term planning of the firm. Mike Hunter will serve as the manager in charge of the merged firm’s St. Louis and Illinois offices.

The combination increases the number of attorneys at BSCR to over 50. It also increases the number of locations to 5 cities in Kansas, Missouri and Illinois. Kansas City area attorneys and staff will operate out of BSCR’s Crown Center office location in Kansas City, Mo. St. Louis area attorneys and staff will operate out of WVS’s downtown office location in St. Louis, Mo. Sharice Davids announced her candidacy for the Kansas congressional seat currently held by Rep. Kevin Yoder. Davids is a member of the Ho-Chunk Nation and worked as legal counsel on a South Dakota Indian reservation before serving as a White House fellow during the Obama administration.

If elected, Davids will be the first female Native American to serve in Congress and the first openly gay member of the Kansas delegation. Five other Democrats are also challenging Yoder for the seat.

Euler Law Firm of Troy, Kan., was recognized as one of the oldest continuous supporters of the U.S. Highway 36 Association as part of its 50th Anniversary. Jack Euler served as president of the association for 2 years, and his son, Joel, continues to support it.

Robert “Bob” Green, Kansas University Law School Class of 1967 ( undergraduate degree from the KSU Arts and Sciences Honors Program), retired in January from his position on the Board of Directors of Peoples, Inc., the holding company for all Peoples Banks in Kansas, Colorado and New Mexico. He served on the Board for eight years and received the Chairman’s Award for outstanding service in 2017. Bob retired from his law practice in 2016 after 48 years in the same location in Ottawa, starting with Wint Winter, Sr. in the firm of Winter and Green, later with Tom Sachse as Green and Sachse, and most recently as senior partner with Green, Finch & Covington.

Dan Monnat of Monnat & Spurrier, Chartered has been recognized as one of the world’s leading practitioners in the Investigations sector. Who’s Who Legal, in collaboration with Global Investigations Review, identifies the world’s leading lawyers, forensic accountants and digital forensics experts. A graduate of California State University, Monnat received his J.D. from Creighton University School of Law and is a graduate of Gerry Spence’s Trial Lawyer’s College.

Jeremiah L. Platt delivered a talk on “The Constitutional Limit of Police Use of Force” as part of a project at KSU to promote understanding of the First Amendment and freedom

of speech. Platt, with the Manhattan firm of Clark & Platt, Chtd., is a member of the National College for DUI Defense, National Ass’n. of Criminal Defense Lawyers, NORML, the Kansas Ass’n. of Criminal Defense Lawyers, the KBA and the Riley Co. Bar Ass’n. of which he is President-Elect.

Tom Stanton, Reno County Deputy District Attorney, has been named Drug Prosecutor of the Year and the Reno County Drug Enforcement Unit as the Outstanding Kansas Drug Enforcement Unit for 2017 by the Kansas Narcotics Officer Association. The awards were presented on March 6th. Stanton has been with the Reno Co. DA’s office since 2001. He is a graduate of The University of Kansas School of Law. Ken Strobel, who passed away on Jan. 13 of this year at the age of 78 (see Obituaries page in this issue of The Journal of the KBA), was fondly remembered in a lengthy feature in the Dodge City Daily Globe on Jan. 19. The profile outlined Strobel’s many contributions to the community and warm tributes from his contemporaries in the community.

Joseph Welsh, Attorney at Law, sought out the expertise and creativity of the Sublette (Kan.) High School Computer Application class when he needed a logo for his new office in downtown Sublette. He selected a logo created by student Breanna Quillin, a freshman, and threw a pizza party for both Computer Applications Classes. What wonderful publicity for Welsh and his practice AND for the high school!

Tristen Woods and his fiancée and law partner, Lauren Sierra Kruskall were featured in the February 26 issue of the Kansas City Star under the headline: “Meet Tarzan, the lawyer and former model who fights for animal rights.” His firm, Jungle Law Group, specializes in criminal defense, auto accidents, DUIs and animal rights. The Tarzan moniker took hold when Woods grew his signature long blonde locks when he was 17. He worked as a model in Abercrombie & Fitch and Polo Ralph Lauren ad campaigns, and had a small, recurring role in the ABC soap opera “Port Charles.” The couple’s Tarzan in the jungle-themed billboard located on I-35 in downtown Kansas City has garnered a great deal of attention for the couple and their practice.

Coleman Younger, a graduate of the Washburn University School of Law employed by the Marysville law firm of Galloway, Wegers and Brinegar, PA, is also the current associate head coach of the KSU Inline Hockey Team. He learned the university had a hockey team when he was a freshman and was given a walk-on spot. When the goalie suffered a broken foot before the first game, Younger stepped in — and held that position for four years. Younger works with head Coach John Truman to coach this club sport. www.ksbar.org | April 2018 57

Obituaries Robert "Bob" Paul Aylward, 99, died Sunday, March 4, 2018. He was born on the farm in Stonington, IL on July 15, 1918. His family moved to Greenville, Mississippi when Bob was 10. Bob graduated from Mississippi State College with a degree in Aeronautical Engineering. He was a member of the Kappa Sigma fraternity. In 1940 Bob moved to Wichita, KS to work for Beechcraft. Bob became a Senior Project Engineer working on many projects and serving as President of the Supervisor's Club. Bob worked at Beechcraft/Raytheon until his retirement in 1983. He then continued his career as an expert witness for the Martin Pringle Law Firm, and then as an engineer for J.B. Dwerlkotte Associates. Robert married Mariana Wetterhold on June 1, 1944 at the Cathedral of the Immaculate Conception in Wichita, KS. Bob was preceded in death by his parents, Phillip and Katherine Aylward; sisters, Katherine and Ione; brothers, Philip Leo, Francis, and Howard; first wife, Mariana Wetterhold Aylward, and second wife, Allene Fogelstrom Boston Aylward. Bob is survived by his daughters, Suzanne Montgomery, Sally Leyba, and Cynthia Dawson (Jon); sons, Philip Aylward (Linda), Michael Aylward, and Patrick Aylward (Mary Muset); grandchildren, Douglas Cramer (Amy), Katy Cramer Dorrah (Brent), David Montgomery (Karen), Lindsay Aylward, Vanessa Aylward Rohlman (Ryan), Ashley Aylward (Jonathan Martin), Samuel Leyba, Matthew Leyba, Jennifer Dawson Cardelus (Arturo), Christine Dawson Williams (Ben); great-grandchildren, Drew and Livi Cramer, Addie Dorrah, Grace Cardelus, Lyndon Brewer, Myles Martin. Bob enjoyed operating planes and gliders, organic gardening, camping and water skiing with the kids, refinishing antiques, learning Spanish, and genealogy.

Bob volunteered as a frequent blood donor, Meals on Wheels deliverer, preparer of tax returns for the needy, Eucharistic Minister, church lector, member of Knights of Columbus, and Serra Club. Rosary will be at 6:30 p.m., Wednesday, March 7, 2018, at Downing & Lahey East Mortuary; Funeral Mass will be at 10:00 a.m., Thursday, March 8, 2018, at Blessed Sacrament Church. In lieu of flowers, memorials have been established with: Blessed Sacrament Catholic Church, 124 58

The Journal of the Kansas Bar Association

N. Roosevelt, Wichita, KS, 67208; Good Shepherd Hospice, 7829 E. Rockhill S-403, Wichita, KS, 67206. His Southern hospitality, his easy charm, his love of family and friends, and his religious core will live forever in our hearts.

Dr. Andria Leigh Cooper, 44, an assistant professor of criminal justice at Wayne State College in Nebraska, died Feb. 5, 2018 at Providence Medical Center, Wayne, Neb. She was born Nov. 27, 1973, in Alamosa, Colo., to Larry and Sandra (Wood) McNames. She graduated from Beatty High School in Nevada, receiving her undergraduate studies from Fort Hays State University and graduated law school from University of Kansas in Lawrence. She earned her Juris Doctorate degree in 2000 from the University of Kansas School of Law and bachelor’s degree from FHSU. She married John Cooper on July 30, 1999, in Colby.

She was an assistant professor in the Department of Criminal Justice at Wayne State College. Before teaching at WSC, she sat as a New Mexico state level district court judge after serving as an attorney, primarily in the area of criminal law.

She has served as a prosecutor and a criminal defense attorney and also has experience in the areas of civil rights, constitutional law, victim advocacy, and general areas of legal practice.

She has trained law enforcement and other criminal justice professionals in the areas of arrest, search and seizure, report writing, warrant preparation, juvenile justice, fraud investigation and prevention, domestic violence investigation and victim advocacy and sat on a governor’s domestic violence fatality review board. She was an advisor of Delta Upsilon, a chapter of the National American Criminal Justice Association, which participates in regional and national competitions on criminal justice knowledge, agility, firearms and crime scene competitions. She also creates mock crime scenes and mock trials for classes, which allows students to present cases at trial, testify as witnesses, listen to the case as jurors or assume other criminal justice roles in the courtroom.

obituaries

She was a member of the American Criminal Justice Association, Justice Clearinghouse and Pi Gamma Mu (a social sciences honor society). She also was a consultant on Faculty Row, and was involved in several committees on campus and the Wayne community as well. She has been honored as an outstanding professor (2005) and outstanding advisor (2005), as well as received a faculty appreciation award from Sigma Chi (2007). She has received service awards from the Kansas Coalition Against Sexual and Domestic Violence (2004) and the Northwest Kansas Family Shelter (2003). Her teaching interests include criminal law and procedure, criminal evidence, report writing and trial techniques for criminal justice professionals, civil liability in criminal justice, comparative justice systems, and all legal aspects of other criminal justice disciplines. Her research interests include civil rights, especially privacy advocacy, search and seizure, and the Second Amendment. She also enjoyed scholarly work in constitutional issues involving federalism and separation of powers.

Survivors include her husband; two daughters, Devon Cooper, Clayton, N.M., and Skylar Cooper, Wayne; her parents, Palco; two brothers, Ryan McNames and Neal McNames, both of Palco; her grandmother, Veda Wood, Oberlin; her parents-in-law, C.W. and Pat Hamilton, Levant and Galen Cooper, Goodland; her brother-in-law, Trey Hamilton, Hays; her grandmother-in-law, Margaret Chick, Colby; and nieces and nephews. She was preceded in death by a grandparents.

Services were held at Wayne State College Fine Arts Building Ramsey Theater, Wayne. hosted by her criminal justice students. Visitation was held before the service at the theater.

Memorials were suggested to the Cooper family for later designation. Hasemann Funeral Home, Wayne, is in charge of arrangements.

Ken William Strobel(1939 - 2018) Ken William Strobel, 78, died January 13, 2018 in Dodge City. He was born on September 11, 1939 at Trinity Hospital in Dodge City, the son of William H. and Marie D. (Phillips) Strobel.

Ken was seven years old when the family moved to Great Bend. He married Carol Kaiser of Great Bend on August 29, 1959.

After graduating from Great Bend High School in 1958, he attended Southwestern College in Winfield for three years and then Wichita State University for one year where he earned a degree in 1962. In 1965, he graduated from Washburn Law School in Topeka, and was part of the first class to receive a Juris Doctorate degree. Following law school, he joined Williams, Larson and Voss Law Firm in Dodge City where he practiced law for forty-three years. At the age of 68, he assumed the dual role of city manager/legal counsel of the City of Dodge City.

Ken was active in the Dodge City Area Chamber of Com

merce, serving as president and vice-president and many years as one of the board of directors. He was a member and chairman of Ford County/Dodge City Development Corporation Board of Directors. Ken played a pivotal role in bringing essential air service to southwest Kansas. Other organizations where he held leadership positions include the Trinity Association; Dodge City Public Library Board; the Red Cross Board and American Heart Association; Boot Hill Board of Directors; Dodge City Athletics; Kansas West Conference Health Ministry Board; the Mental Health Association; state and local legal groups; and the Kansas State School Board Association and was a founding member of Dodge City's Optimist Club. He was an active member of the Dodge City First United Methodist Church and Keystone Sunday School Class.

Survivors include his wife of 58 years, Carol; four sons, T. Craig Strobel and wife Ann and daughters, Roseanne and husband Leon, and their daughter Raelynn, Jenna and Kaylee of New Port Richey, Florida; Christopher S. Strobel and wife Janelle and sons, Tasker and Spencer of Avon, Indiana; Wm. Connan Strobel and wife Robin and daughters Jaden and husband Justin, Taryn, Brooklyn, and son Daxton of Andover; Geo. Corbin Strobel and wife Emily and daughters, Peyton and Maggie of Hutchinson, Kansas; and one daughter, Kendall C. Hackerott and her husband Kevin and their daughters, Kennedy, Kade and Karsyn of Wichita. He was preceded in death by his parents and grandparents, Mr. and Mrs. Cortes Phillips and Mr. and Mrs. John Strobel.

Funeral service will be held at the First United Methodist Church in Dodge City on Saturday, January 20, 2018 at 10:00 AM with Rev. Jerre Nolte presiding. Burial will follow at Maple Grove Cemetery in Dodge City. Visitation will be at Swaim Funeral Chapel in Dodge City on Friday January 19, 2018 from 12:00 PM to 8:00 PM. Memorials are suggested to the Keystone Sunday School Class of the United Methodist Church in care of the funeral home. Thoughts and memories may be shared in the online guest book at www.swaimfuneralhome.com.

www.ksbar.org | April 2018 59

Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at 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 ORDER OF DISBARMENT IN THE MATTER OF KENNETH J. GENIUK NO. 118,226—FEBRUARY 23, 2018

FACTS: After a formal complaint was filed, and after Geniuk failed to respond or answer, a hearing panel determined that Geniuk violated KRPC 5.5(a) and (b) (unauthorized practice of law); 7.1(a) (communications concerning a lawyer's services); 8.3(a) (reporting professional misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Rule 207(c) (failure to report action); 208(c) (failure to notify Clerk of the Appellate Courts of change of address); and 211(b) (failure to file answer in disciplinary proceeding). Geniuk was admitted to the Kansas bar in 2007 and the Missouri bar in 2008. His Kansas license was suspended in 2013 for failure to comply with all annual licensure requirements. Despite the suspension, Geniuk continued to practice in Kansas. After a Kansas judge asked Geniuk about his status, Geniuk informed the court that he was licensed in Missouri.

The court did not believe that any rule allowed Geniuk to appear in Kansas and he was asked to leave the court. After a complaint was filed and during the investigation, it was discovered that Geniuk's web site advertised that he provided legal services in Kansas.

HEARING PANEL: After considering the aggravating factors and the lack of mitigators, the hearing panel unanimously recommended that Geniuk be indefinitely suspended.

HELD: Geniuk did not appear at the hearing before the court. Because he filed no exceptions, the hearing panel's report was admitted. Geniuk's failure to appear was considered to be an additional aggravating factor, and a majority of the court ordered that he be disbarred. A minority of the court would have imposed the lesser sanction of indefinite suspension.

ORDER OF SUSPENSION IN THE MATTER OF LANCE M. HALEY NO. 118,378—MARCH 2, 2018

FACTS: A hearing panel determined that Haley violated KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (unauthorized practice of law), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice 60

The Journal of the Kansas Bar Association

law). Haley's license to practice law in Missouri was suspended in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registration requirements in Kansas, and his Kansas law license was suspended. It was not until Haley began to explore reinstatement that the Kansas disciplinary administrator learned of Haley's misconduct suspension in Missouri. Haley's Missouri license was reinstated in 2015, although he was placed on probation. But he never addressed the reciprocal discipline issues that existed in Kansas.

HEARING PANEL: Most of the conduct addressed by the hearing panel occurred in Missouri. But Haley did self-report one instance of unauthorized practice which occurred when he prepared a codicil for his mother's will. While Haley's experience with the practice of law was an aggravating factor, there were significant mitigating factors including mental health conditions and Haley's cooperation with the process.

The disciplinary administrator recommended that Haley be suspended for one year, with that suspension stayed so that Haley could complete a term of probation. The hearing panel agreed with the disciplinary administrator and made that recommendation to the court.

HELD: After considering the hearing report, the court imposed a one-year disciplinary suspension. If Haley is able to satisfy all administrative requirements to end his administrative suspension, he will be allowed to petition the court for an order to suspend the disciplinary suspension and the imposition of a two-year probation period.

ORDER OF DISCHARGE FROM PROBATION IN THE MATTER OF ELIZABETH ANNE HUEBEN NO. 113,928—MARCH 1, 2018

FACTS: In October 2015, the court stayed the imposition of a two-year suspension and placed Hueben on probation for two years, with specific conditions. In November 2017, Hueben filed a motion for discharge from probation along with evidence of her compliance. That compliance was confirmed by the Office of the Disciplinary Administrator.

HELD: After reviewing the motion, affidavits, and recommendation of the disciplinary administrator, the motion is granted. Hueben is discharged from probation and this matter is closed.

appellate decisions ORDER OF INDEFINITE SUSPENSION IN THE MATTER OF EDGAR HULT NO. 118,204—FEBRUARY 16, 2018

FACTS: The Disciplinary Administrator's Office filed a formal complaint against Hult alleging multiple violations of the KRPC. A hearing panel determined that Hult violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.5 (fees), 1.15(a) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 3.4(c) (fairness to opposing party and counsel), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.3(a) (reporting professional misconduct), Rule 207(c) (failure to report action), and Rule 211(b) (failing to file an answer in a disciplinary proceeding). The complaints involved Hult's immigration practice, and subsequent discipline, in Iowa as well as in Kansas.

HEARING PANEL: The hearing panel found that, through a pattern of misconduct, Hult injured his clients. Although the hearing panel did determine that Hult suffers from anxiety and depression, it agreed with the disciplinary administrator that indefinite suspension would be an appropriate sanction.

HELD: After noting that Hult stipulated to the violations, the Court considered the appropriate discipline. Hult agreed that indefinite suspension was an appropriate sanction, and the court imposed that discipline.

ORDER OF DISBARMENT IN THE MATTER OF KEVIN M. MANZ BAR DOCKET NO. 10687—FEBRUARY 14, 2018

FACTS: In a letter signed January 29, 2018, Kevin M. Manz voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary compliant was pending which alleged that Manz committed misconduct after being convicted for three felony convictions of grand theft.

HELD: The court accepted the surrender and Manz was disbarred.

Civil IMMUNITY—NEGLIGENCE—TORTS PATTERSON V. COWLEY COUNTY COWLEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART NO. 114,705—MARCH 16, 2018

FACTS: Jason Patterson and Cortney Brewer drowned when they drove their vehicle off a roadway and into the Arkansas River. The road, which was located in Bolton Township in Cowley County, abruptly ended at the river. The county placed a "Pavement Ends" sign where the road transitioned from paved, county road to unpaved, township road. Beyond that, there was no signage to warn drivers that the road ended and the river began. After the accident, Patterson's widow filed suit against the county and the township, claiming that

all parties negligently failed to provide adequate warnings and barricades. The district court granted summary judgment to the township, finding that it had no legal duty to erect any signage or barricades. As to the county, the district court found that the county was immune under the Kansas Tort Claims Act for failing to post an advisory speed plaque. But the district court refused to enter judgment on the issue of whether the county was negligent for failing to place a "Dead End" or "No Outlet" sign at the end of the pavement. The court similarly failed to find immunity under the KTCA's recreational use exception. Patterson and the county were each allowed to pursue interlocutory appeals. The court of appeals affirmed that the county was not entitled to the recreational use or inspection immunity but reversed the district court's ruling on the county's discretionary function immunity. The Supreme Court granted review.

ISSUES: (1) Township duty to install traffic-control devices; (2) county duty to conduct an engineering study; (3) county discretionary function immunity; HELD: The township had no statutory duty to place or maintain traffic-control devices. And there is no statute that provides the township with the authority to adopt ordinances or regulations relating to vehicular traffic. In that absence, the township had no duty to erect traffic-control devices and was entitled to summary judgment. The Manual on Uniform Traffic Control Devices does not require periodic surveys of the county's roadways that are meant to preemptively spot trouble. All traffic-control devices placed by local authorities must comply with the MUTCD. In this case, the MUTCD did not require the signs sought by Patterson. In the absence of a mandate, the county's failure to post a sign was a discretionary function and entitled to immunity. Because claims against the county are resolved, it is unnecessary to address analysis of the recreational use and inspection immunity defenses.

STATUTES: K.S.A. 2017 Supp. 8-1432. -2005, 68-101(e), -526, -526(b), 75-6102, -6104(h), 80-101; K.S.A. 8-1432, -1442, -1447, -1512(a), -2003, 68-523, 75-6101, 80-301(a), -306, -307

Criminal CRIMINAL LAW—CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. BUELL SHAWNEE DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED COURT OF APPEALS—REVERSED

FACTS: Buell convicted of robbery and attempted kidnapping. In calculating Buell’s criminal history, sentencing court classified Buell’s two prior Florida burglary juvenile adjudications as person felonies. Buell appealed, arguing the Florida adjudications should not have been classified as person felonies because Kansas had no comparable offense. Court of appeals affirmed Buell’s criminal history and sentence, finding the burgled structure requirements in the Kansas and Florida www.ksbar.org | April 2018 61

appellate decisions

statutes were comparable, and it was irrelevant that the intent element in the Florida statute differed from the specific intent required for the Kansas offense. 52 Kan.App.2d 818 (2016).

Buell’s petition for review granted.

ISSUE: Classification of out of state conviction HELD: Panel’s single-element view of comparability is rejected. Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Buell’s prior Florida burglary juvenile adjudications had no comparable offense in the Kansas criminal code when Buell committed the Kansas crime. Pursuant to K.S.A. 2017 Supp.

21-6811(e), the Florida adjudications must be scored as nonperson felonies. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2015 Supp. 21-6811(e); K.S.A. 2011 Supp. 21-5807, -6804, -6810(a), -6811(e) SELF-REPRESENTATION STATE V. BUNYARD SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED NO. 112,645—FEBRUARY 16, 2018

FACTS: Bunyard was arrested after allegedly choking and breaking the jaw of his girlfriend. During a pre-trial hearing, Bunyard interjected and asked to address the court. The judge denied that request, telling Bunyard that he could have counsel communicate or he could represent himself. Bunyard made an "unequivocal" request to represent himself. The district court refused to consider this oral motion. A jury found Bunyard guilty as charged. The court of appeals considered Bunyard's argument on his request to represent himself and determined that no error occurred. His convictions were affirmed and the Supreme Court granted review.

ISSUE: Right of self-representation HELD: After filing multiple pro se motions, Bunyard made an unequivocal request to represent himself. But the district court did not follow up, counsel Bunyard, or try to determine his informed wishes. Bunyard had no way to comply with the direction to file a written motion, and the demand for such left Bunyard without recourse. The district court's error in not allowing Bunyard to self-represent was structural and requires a reversal of all of Bunyard's convictions.

STATUTES: No statutes cited.

APPELLATE PROCEDURE—CONSTITUTION STATE V. DANIEL JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 107,963—FEBRUARY 16, 2018

FACTS: Daniel pled no contest to attempted kidnapping and domestic battery. At sentencing, Daniel learned that he would be required to register under the Kansas Offender Registration Act. The State contended that registration require62

The Journal of the Kansas Bar Association

ment would be in place for the rest of Daniel's life, while Daniel's counsel argued for a 10-year registration period. The parties briefed the issue for the court, and Daniel's counsel conceded that the registration requirement was not "punishment", meaning a lifetime term was constitutionally permissible. After receiving a sentence which included a lifetime registration requirement. Daniel appealed. The court of appeals refused to reach the merits of Daniel's arguments, finding that Daniel invited error by conceding that the registration requirement was not a punishment. The Supreme Court accepted Daniel's petition for review.

ISSUE: Invited error HELD: Generally, constitutional claims cannot be raised for the first time on appeal. In this case, Daniel failed to set out an exception to this general rule. The court of appeals is affirmed on the ground that Daniel's claim was never preserved for appeal.

STATUTE: K.S.A. 2011 Supp. 22-4906(d)(9), -4906(d)(12) CRIMINAL PROCEDURE—GUILTY PLEA STATE V. DEANDA FINNEY DISTRICT COURT—AFFIRMED NO. 11828—FEBRUARY 23, 2018

FACTS: DeAnda entered guilty plea to first-degree murder in exchange for State dismissing charges of rape and aggravated criminal sodomy District court accepted the plea and imposed hard-50 life sentence. Sentence vacated on appeal and remanded for resentencing under Alleyne v. United States, 570 U.S. 99 (2013). Prior to resentencing DeAnda filed motion to withdraw his plea, claiming: ineffective advocacy by trial counsel; the plea process and competency evaluation conspired to take advantage of his fragile mental state; and his plea was not free, knowing, and understandable. District court denied the motion, finding none of the three factors in State v. Edgar, 281 Kan. 30 (2006), were satisfied. DeAnda appealed.

ISSUE: Motion to withdraw a plea HELD: No abuse of district court’s discretion in its assessment of the Edgar factors. Case record of the entire plea process, including the plea agreement, counsel’s advice, and the plea colloquy, does not support any of DeAnda’s claims. District court’s denial of DeAnda’s motion to withdraw his plea is affirmed.

STATUTES: K.S.A. 2016 Supp. 22-3210(d), -3210(d)(1), -3601(b); K.S.A. 21-4635, 60-2010(b) CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—FIFTH AMENDMENT—IMMUNITY—JURISDICTION—STATUTES STATE V. DELACRUZ RENO DISTRICT COURT—REVERSED AND SENTENCE VACATED—COURT OF APPEALS—REVERSED NO. 111,795—MARCH 2,2018

FACTS: Victim murdered in robbery committed by Dela-

appellate decisions

cruz and four others, including Waller. Delacruz convicted of aggravated robbery. Thereafter, State subpoenaed Delacruz as witness at Waller’s murder trial. Delacruz refused court orders to testify, claiming in part the immunity offered did not protect his Fifth Amendment right against self incrimination.

State filed accusation of contempt, and jury found Delacruz guilty of direct criminal contempt of court. A 108-month sentence imposed, consecutive to his 83-month aggravated robbery sentence. Delacruz appealed on his Fifth Amendment claim, and challenged the length of his sentence. Court of appeals affirmed the contempt conviction and sentence. 52 Kan. App.2d 153 (2015).

ISSUES: (1) Subject matter jurisdiction, (2) fifth amendment right against self incrimination HELD: Court considered sua sponte whether contempt order was void for lack of jurisdiction. District court’s journal entry failed to comply with the compulsory statutory procedure in K.S.A. 20-1203 for direct contempt, but Delacruz failed to challenge the district court’s jurisdiction and a decision on the merits is especially clear. Court presumes, without deciding, that district court did not lose jurisdiction to find Delacruz in direct contempt of court through a deficient journal entry.

State granted Delacruz mere use immunity, rather than derivative immunity. Delacruz had a valid Fifth Amendment right to refuse to testify because the immunity granted to him was not coextensive with his constitutional right against selfincrimination. The order of contempt is reversed, and the sentence imposed is vacated.

CONCURRENCE: (Johnson, J.) Concurs in the result.

STATUTES: K.S.A. 20-1201, -1203, 22-3415, -3415(a), -3415(b)(2), -3415(c), 60-425 APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—STATUTES STATE V. GONZALEZ POTTAWATOMIE DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 112,841—MARCH 9, 2019

FACTS: Gonzalez was convicted of unintentional seconddegree murder for a shooting death. On appeal Gonzalez claimed for first time that the statute defining unintentional second-degree murder is unconstitutionally vague. He also claimed insufficient evidence supported the conviction; alleged the trial court erred in answering a jury question that sought clarification of the differences between unintentional second-degree murder and involuntary manslaughter; and claimed the trial court should have sua sponte given a limiting instruction about evidence of Gonzalez aiming gun at a passerby some 15 minutes before fatally shooting the victim.

Court of Appeals affirmed in an unpublished opinion. Gonzalez’ petition for review granted.

ISSUES: (1) Constitutionality of unintentional second-degree murder, (2) sufficiency of the evidence, (3) jury question, (4) limiting instruction

HELD: Statute defining unintentional second-degree murder is not unconstitutionally vague. Gonzalez’ arguments regarding State v. Deal, 293 Kan. 872 (2012), are rejected.

The amended definition of “recklessly” in the 2010 recodification of Kansas Criminal Code does not alter the rationale in State v. Robinson, 261 Kan. 865 (1997), that a difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind. Finally, Gonzalez’ claim based on Johnson v. United States, 135 S.Ct. 2551 (2015), is misplaced because Johnson does not invalidate Robinson’s rationale.

Jury’s verdict was supported by sufficient evidence which established not only reckless behavior, but also circumstances manifesting extreme indifference to the value of human life.

Gonzalez’ constitutional and statutory rights to be present were violated when trial court prepared the jury question response without Gonzalez or his attorney being present, but that error was harmless beyond a reasonable doubt in light of the entire record. Gonzalez waived or abandoned any challenge to panel’s analysis that trial court’s written response did not violate Gonzalez’ right to a public trial, and Kansas Supreme Court declines to address the public trial question.

District court did not abuse its discretion by referring the jury back to the given instructions.

Panel correctly held the district court did not err in failing to give a limiting instruction. The evidence at issue was admitted independent of K.S.A. 2016 Supp. 60-455.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5403(a)(2), -5405(a)(1), 22-3405(a), -3414(3), -34120(d), 60-455; K.S.A. 20-3018, -3018(b), 21-3101(c), 22-3417, 60-455, -2101(b) CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— STATUTES STATE V. HAYES ATCHISON DISTRICT COURT—AFFIRMED NO. 116,717—MARCH 2, 2018

FACTS: Hayes was convicted in 1994 of first-degree murder, aggravated robbery, and conspiracy to commit robbery.

Convictions affirmed on direct appeal, 258 Kan. 629 (1995).

In 2015 Hayes filed pro se motion to correct an illegal sentence. District court summarily dismissed the motion, finding no merit or legal basis. Hayes appealed, claiming district court denied him due process by failing to hold a hearing on the motion without Hayes being present, as required by the plain language of K.S.A. 22-3504.

ISSUE: Motion to correct an illegal sentence HELD: Hayes’ statutory argument is defeated by holding in State v. Campbell, 307 Kan. 130 (2017), that a district court’s preliminary examination of a motion to correct an illegal sentence does not trigger the movant’s right to be present. Hayes’ due process claim is defeated by holding in State v. Swafford, 306 Kan. 537 (2017), that the summary denial, without a hearing, of a motion to correct an illegal sentence does not run afoul of the Fourteenth Amendment’s due process guarantee. www.ksbar.org | April 2018 63

appellate decisions

STATUTES: K.S.A. 2017 Supp. 22-3504(1) -3504(3), -3601(b)(3); K.S.A. 2016 Supp. 21-6801 et seq., K.S.A. 223504 SENTENCING STATE V. IBARRA SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 108,576—FEBRUARY 16, 2018

FACTS: Ibarra pled guilty to two counts of aggravated indecent liberties. Prior to sentencing, Ibarra moved for both dispositional and durational departures from the presumptive sentence. He claimed that his age, the consensual nature of the relationship, and his ongoing treatment warranted leniency in sentencing. The district court granted only the motion for downward durational departure, finding that Ibarra suffered from a mental impairment which affected his judgment.

Ibarra was also ordered to register as a sex offender for the remainder of his life. Ibarra appealed, arguing that the district court erred by denying his motion for dispositional departure and that the lifetime registration requirement violated the Ex Post Facto Clause. The court of appeals summarily affirmed the registration requirement, finding that the ex post facto argument was improperly raised for the first time on appeal.

The rest of the appeal was dismissed for lack of jurisdiction because the district court had not departed adversely to Ibarra.

The petition for review was granted.

ISSUES: (1) New constitutional issue on appeal; (2) reviewability of sentence HELD: Generally, constitutional issues cannot be raised for the first time on appeal. Although Ibarra did put forth an exception to that rule, he loses on the merits because the registration requirement is not a punishment. The court of appeals erred by declining jurisdiction over Ibarra's departure sentence issue. But the claim fails on the merits. The district court did not err by denying the motion for dispositional departure.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ) The dissent is based on the justices' on-going belief that registration is punishment.

STATUTE: K.S.A. 2010 Supp. 21-3504(c), -4704 CRIMINAL PROCEDURE—PLEAS STATE V. JOHNSON RENO DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 111,550—FEBRUARY 16, 2018

FACTS: Johnson was charged with one count of possession of methamphetamine with intent to sell, one count of criminal possession of a firearm, and other drug-related offenses. Johnson agreed to plead guilty to the possession of methamphetamine with intent to sell charge and the firearm charge. In exchange for his plea, the State agreed to dismiss the remaining counts and make concessions at sentencing.

64

The Journal of the Kansas Bar Association

But before Johnson could be sentenced he was charged with another count of possession of methamphetamine with intent to sell. Neither the state nor Johnson's counsel became aware of this charge until Johnson was being sentenced. At this sentencing hearing, Johnson moved to withdraw his plea, arguing that he was innocent and wanted a jury trial. After a counsel change, a new agreement was reached, and Johnson withdrew his motion to withdraw plea. After his sentences were affirmed on direct appeal, Johnson moved to withdraw his plea on grounds that trial counsel was ineffective. That motion was denied, and the court of appeals affirmed that decision. Johnson's petition for review was granted.

ISSUE: Withdrawal of plea HELD: Johnson cannot carry his burden to show that the district court abused its discretion, and he similarly cannot show that he was misled into pleading guilty. For these reasons, the district court is affirmed.

STATUTES: K.S.A. 2016 Supp. 22-3210(a)(2), -3210(d) (2); K.S.A. 22-4902(a)(11)(C), -4905(b)(1), -4906(a)(2) CRIMINAL LAW—CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. MOORE SEDGWICK DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED COURT OF APPEALS—REVERSED NO. 113,545—MARCH 9, 2018

FACTS: Moore was convicted of aggravated indecent liberties with a child. In calculating Moore’s criminal history, sentencing court classified Moore’s 1984 Oregon burglary conviction as a person felony. Moore later filed a motion to correct an illegal sentence, arguing his pre-1993 out-of-state burglary conviction should have been scored as a nonperson felony. District court summarily denied the motion. Moore appealed. Court of appeals affirmed the denial, finding the burgled structure in the Oregon crime comparable to the dwelling in the Kansas burglary statute, notwithstanding other disparities in the respective crimes’ elements. Moore v.

State, 52 Kan.App.2d 799 (2016). Review granted.

ISSUE: Classification of out of state conviction HELD: Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Moore’s 1984 Oregon conviction did not have any comparable offense in the Kansas criminal code when Moore committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Oregon conviction must be scored as a nonperson felony.

Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e) (3); K.S.A. 2004 Supp. 21-4704, -4711(e); K.S.A. 21-3715, -4710(a) APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE— PROSECUTORS—SENTENCES—STATUTES STATE V. STURGIS

appellate decisions SEDGWICK DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART, SENTENCE VACATED, REMANDED COURT OF APPEALS—AFFIRMED IN PART AND MODIFIED IN PART NO. 112,544—MARCH 9, 2018

FACTS: Sturgis was convicted of theft and criminal possession of firearm. In calculating Sturgis’ criminal history, sentencing court classified a prior Michigan conviction for thirddegree home invasion as a person offense. Sturgis appealed claiming: (1) error by prosecutor’s comments during closing argument, and (2) error in sentencing court’s classification of the prior Michigan conviction. In unpublished opinion, court of appeals found prosecutor misstated the evidence and improperly commented on drug use, but there errors were harmless. Panel also determined the elements of the Michigan offense were broader than the Kansas person felony crime of burglary of a dwelling, but district court should have conducted a modified categorical approach to determine which of the Michigan statute’s alternative elements formed the basis of Sturgis’ conviction. Sturgis’ petition for review granted. While appeal was pending, state filed change-of-status letter in September 2017 of Sturgis’ release in June 2016.

ISSUES: (1) Custodial status, (2) prosecutorial misconduct, (3) classification of out of state conviction HELD: State did not argue that the issues presented for review are moot, thus issue of mootness is deemed abandoned.

Each allegation of prosecutorial error is examined. Prosecutor’s comment on Sturgis’ testimony was fair comment to point out inconsistencies and weaknesses, rather than impermissibly comment on Sturgis’ credibility. Prosecutor misstated Sturgis’ testimony, but that error was not a game-changer.

Prosecutor’s improper comment implying drug use cuffed the line of reversibility, but panel’s finding of harmless error is affirmed.

Meaning of “comparable offense” as determined in State v.

Wetrich (decided this same day) is applied, finding Sturgis’ Michigan home invasion conviction was not comparable to the Kansas burglary of a dwelling offense as it existed when Sturgis committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Michigan conviction must be scored as a nonperson felony. Convictions are affirmed, sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2012 Supp. 21-5807(a)(1), -6810(a), -6811(e) APPEALS—CRIMINAL PROCEDURE—SENTENCES— STATUTES STATE V. WARREN WYANDOTTE DISTRICT COURT—SENTENCE VACATED, REMANDED NO. 115,972—MARCH 9, 2018

FACTS: Warren was convicted of premeditated first-degree murder, second-degree murder, and attempted first-degree murder. Hard 50 life sentence was imposed for the off-grid

first-degree murder, to run concurrently with the155-month concurrent on-grid sentences for the remaining two counts.

Following Alleyne v United States, 570 U.S. 99 (2013), and State v. Santo, 299 Kan. 102 (2014), Warren’s Hard 50 sentence was vacated and case remanded for resentencing. On remand, state sought a lesser sentence that did not constitutionally require impaneling a jury. District court imposed Hard 25 sentence, and ordered all sentences to run consecutively. Warren appealed, arguing State v. Guder, 293 Kan. 763 (2012), and the Kansas Sentencing Guidelines Act (KSGA), barred district court from changing the two non-vacated sentences in length and sequence.

ISSUE: Resentencing on remand HELD: Holding in Guder is affirmed. KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences not vacated on appeal, barring the need to alter a non-vacated as a matter of law to avoid an illegal sentence. Applying Guder to facts of this case, district court on remand improperly modified the off-grid sentence to run consecutive to Warren’s on-grid sentence. District court made improper de facto modification to sentences that had not been vacated on appeal, and acted inconsistently with the service of sentence sequence contemplated by K.S.A. 21-4720(b)(2). Remanded for resentencing.

District court is ordered to reinstate the original 155-month concurrent on-grid sentences and to run it concurrent with the new Hard 25 off-grid sentence.

STATUTE: K.S.A. 21-4701 et seq., -4720(b), -4720(b)(2), -4720(b)(5), 22-3601(b)(3) CONSTITUTIONAL LAW—COURTS—CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. WETRICH JOHNSON COUNTY DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED COURT OF APPEALS—AFFIRMED NO. 112,361—MARCH 9, 2018

FACTS: Prior to sentencing on Kansas offenses, Wetrich unsuccessfully tried to challenge the criminal history scoring of his 1988 Missouri burglary as a person felony. Court of appeals reversed and ordered district court to conduct a resentencing hearing. District court again scored the Missouri conviction as a person felony, finding “dwelling” in Kansas statute was comparable with “habitable structure” in the Missouri statute. In unpublished opinion, court of appeals vacated Wetrich’s sentence and remanded for resentencing with the correct criminal history score. State petitioned for review, citing a split of authority among Court of Appeals panels regarding the comparability of the Missouri burglary statute.

ISSUE: Classification of out-of-state burglary conviction HELD: The extent to which recent United States Supreme Court decisions constitutionally mandate the federal identical-or-narrower rule is not examined because issue in this case is resolved by statutory interpretation. For an out-of-state conviction to be comparable to an offense under the Kansas www.ksbar.org | April 2018 65

appellate decisions

criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. Comparing elements of the Missouri and Kansas burglary offenses, two elements are broader in the Missouri statute—the specific intent required and the structure involved. Wetrich’s prior Missouri conviction should have been classified as a nonperson felony.

Reversed, sentence vacated, and case remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-5807(a)(1), -6811(d) (1), -6811(e), -6811(e)(2)(A), -6811(e)(3); K.S.A. 2008 Supp.

21-4704, -4705, -4710, -4710(a); K.S.A. 21-3110, -3110(7), -3715, -3715(a), -4711, -4711(d)(1), -4711(e) CRIMINAL PROCEDURE—JURY INSTRUCTIONS— PROSECUTORIAL MISCONDUCT STATE V. WRIGHT SEDGWICK DISTRICT COURT—AFFIRMED NO. 112,635—FEBRUARY 16, 2018

FACTS: Wright was convicted of first-degree premeditated murder and conspiracy to commit murder. In a previous proceeding, the issue arose about whether Wright's constitutional rights were violated when he was not physically present at a continuance hearing. After his conviction, Wright raised several issues on appeal.

ISSUES: (1) Presence at continuance hearing; (2) premedi-

tation jury instruction; (3) prosecutorial misconduct; (4) intent instruction HELD: Wright's absence from the courtroom at the continuance hearing violated his constitutional rights. But that absence did not result in reversible error, because Wright's presence would not have made a difference in the outcome.

The jury instruction given by the court was a correct statement of the law and the court did not err by including that language in the premeditation instruction. At the instructions conference, the prosecutor made a legally erroneous claim in asserting that case law directed certain language to be used in an instruction. But any error that resulted was harmless. Any issue regarding the intent instruction was not properly preserved. But even if addressed on the merits it does not show reversible error.

CONCURRENCE: (Johnson, J. joined by Luckert, J.) Justice Johnson does not believe that Wright's absence from the courtroom during the continuance hearing was harmless error. But because statutory speedy trial rights are not of constitutional magnitude, the outcome of this decision is appropriate.

STATUTE: K.S.A. 2016 Supp. 21-5202(h)

Kansas Court of Appeals Civil ADMINISTRATIVE LAW—STATUTORY INTERPRETATION CARLSON AUCTION SERVICE, INC. V. KANSAS CORPORATION COMMISSION SHAWNEE DISTRICT COURT—AFFIRMED NO. 117,750—FEBRUARY 16, 2018

FACTS: After she was alerted by a citizen, a Highway Patrol officer stopped Carlson's driver while he was delivering a truck from Topeka to Kansas City. During an inspection, the trooper noticed that the truck did not have a USDOT number. Carlson alleged that it did not need to register its vehicles, but the driver was ticketed for failure to pay Unified Carrier Registration Act fees. The KCC then sent Carlson a notice of violation for failure to register with USDOT and pay the UCR fee. Carlson objected but the fee was upheld through the administrative process. After Carlson filed a petition for judicial review, the district court reversed the fee. It determined that since the property being delivered was the vehicle, it was not necessary to pay the UCR fee. The KCC appealed.

ISSUE: Necessity of fee payment HELD: Carlson did not meet the definition of "motor car66

The Journal of the Kansas Bar Association

rier" and was not under KCC jurisdiction when driving the truck. Instead, Carlson was merely delivering a vehicle to its purchaser. Because Carlson was not subject to registration, the fine should be reversed.

STATUTE: K.S.A. 2016 Supp. 8-143(b)(4), 66-1,108(f ), -1,108(i), -1,108b, -1,109, -1,109(q), -1,115, 77-603, -621(c)(4) ATTORNEY FEES—EVIDENCE—FRAUD—WILLS IN RE ESTATE OF EARL O. FIELD ELLIS DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART NO. 116,456—FEBRUARY 16, 2018

FACTS: After the death of his spouse, Field prepared a will that left the bulk of his sizeable estate to Fort Hays State University. Field met Wanda Oborny, and he eventually offered her a job as his bookkeeper. In that capacity, Oborny had access to Field's funds, and she received hundreds of thousands of dollars from him. After Field's death, Oborny claimed that she found a codicil to Field's will that left half of his estate to her.

The codicil bore no witness signatures, but two of Oborny's friends claimed that they saw Field sign and codicil. They died prior to trial, but their testimony was admitted via videotaped deposition. After a lengthy hearing, the district court denied

appellate decisions

Oborny's attempt to admit the codicil to probate. But upon her motion, the district court granted Oborny's motion for attorney fees in the amount of $1 million. Oborny appealed regarding the codicil, and FHSU appealed the attorney fees.

ISSUES: (1) Admission of the codicil to probate; (2) attorney fees HELD: As the proponent of a testamentary instrument, Oborny had the burden to make a prima facie case that Field had the capacity to duly execute the codicil. Field's testamentary capacity was not at issue, he was clearly competent prior to his death. And on its face, the codicil appears to comply with statutory requirements. Because Oborny met her obligations, the burden shifted to FHSU to prove that the codicil was invalid. Fraud must be proven by clear and convincing evidence. And abundant evidence supports the conclusion that the codicil was not signed by Field. It was an error of fact to conclude that Oborny acted in good faith when attempting to admit the codicil to probate. The award of attorney fees to Oborny was an abuse of discretion and that decision was reversed.

STATUTE: K.S.A. 59-606, -1504, -2224. 84-1-201(19) CONSTITUTIONAL LAW—FORFEITURE—FOURTH AMENDMENT—SEARCH AND SEIZURE STATE V. ONE 2008 TOYOTA TUNDRA GEARY DISTRICT COURT—AFFIRMED NO. 117,571—FEBRUARY 23, 2018

FACTS: Officer stopped a Toyota Tundra for partially obstructed vehicle license. K-9 alert to drugs resulted in seizure of the truck, $84,820 in currency, and 11.9 grams of marijuana. State filed civil forfeiture action against the seized property, giving notice to the driver and passenger as parties who might have ownership interest. District granted the passenger’s motion to suppress this evidence, finding the officer unreasonably prolonged the stop beyond its original purpose by requesting a criminal check on the driver and thereby allowing time for the K-9 search. State filed interlocutory appeal.

ISSUE: Fourth Amendment - Traffic Stop HELD: Fourth Amendment exclusionary rule applies to civil forfeiture actions. Validity of the initial traffic stop is not challenged, but under facts of this case, the officer’s request of dispatch to conduct a criminal history check of the driver was unjustified and it unreasonably prolonged the stop. At the time of that request, tasks associated with the stop had been completed, and any safety concerns associated with the stop no longer existed. Kansas Supreme Court has not directly addressed impact of Rodriguez v. United States, 575 U.S. __ , 135 S.Ct.1609 (2015), on the duration of a routine traffic stop. Panel declines state’s invitation for a bright-line rule that all traffic stops permit criminal history checks as part of a traffic violation. District court’s conclusion that the seizure that occurred during the dog sniff violated the Fourth Amendment is affirmed.

STATUTE: K.S.A. 60-4101 et seq.

OPEN RECORDS—STATUTORY INTERPRETATION CLARK V. USD 287 FRANKLIN DISTRICT COURT—REVERSED AND REMANDED NO. 117,343—MARCH 9, 2018

FACTS: Gene Hirt was barred from school district property after district officials alleged that he behaved inappropriately at a school board meeting. After reading about the incident, Clark became concerned about the letter that Hirt received, and he wanted to know the exact source and meaning of the district's policy. Clark filed a Kansas Open Records Act request seeking any disciplinary action concerning Hirt as well as any reference to Hirt in official district memorandum. The district denied the request on grounds that it could not disclose correspondence between the district and a private individual. Clark then filed a second KORA request seeking copies of procedures and guidelines that applied to members of the public.

The district sent some materials to Clark, but Clark did not believe the materials were responsive to his request, so he filed a complaint in district court. The district court agreed with the district that the letter to Hirt was exempt from disclosure.

The district court believed that the district's disclosure of the other materials was appropriate, but that a delay in responding was a technical violation. The court awarded Clark nominal damages and costs. Both Clark and the district appealed.

ISSUES: (1) Mootness; (2) duty to disclose the letter; (3) damages and costs HELD: Although it is undisputed that Clark now has the letter to Hirt, this appeal is not moot because a question persists regarding whether the district's refusal to provide the letter was allowed under KORA. Although the letter between the district and Hirt was correspondence regarding a private individual, an exception to this exception exists. The district's power to ban a citizen from its property came from the legislative mandate that school boards are allowed to control their property. Because of this power, the district's refusal to provide the letter to Clark violated KORA. Although the district did technically violate KORA by not timely providing materials to Clark, there is no statutory authority for an award of either damages or costs. The district court made no finding that the district acted in bad faith, and the record shows a good-faith effort to comply with Clark's numerous KORA requests. For those reasons, the award of damages and fees was inappropriate and must be reversed.

STATUTES: K.S.A. 2017 Supp. 45-219, -220, -221, -221(a)(14), -222(a), -222(d), 72-1138(e)(1), 1416, -3216(b), -3216(d); K.S.A. 2015 Supp. 45-221(a)(14); K.S.A. 45-216, -218(a), -218(d)

www.ksbar.org | April 2018 67

appellate decisions

Criminal CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—FOURTH AMENDMENT STATE V. PERKINS ELLIS DISTRICT COURT—AFFIRMED NO. 112,449—MARCH 2, 2018

FACTS: Officer stopped Perkins for traffic infraction, conducted field sobriety tests, and arrested him for driving under the influence of alcohol. Result of agreed-to breath test was over the legal limit. Perkins moved to suppress the breath test results, claiming consent was coerced and involuntary, and breath test was an unreasonable search that violated Fourth Amendment. District court denied the motion and convicted Perkins on stipulated facts. Perkins appealed. Court ordered supplemental briefing to address rulings by the United States and Kansas supreme courts while this appeal was pending.

State argued the warrantless breath test result was constitutionally admissible as a result of a search incident to an arrest.

Alternatively, state argued for application of the good-faith exception to the exclusionary rule.

ISSUES: (1) Search incident to arrest, (2) good-faith exception to the exclusionary rule HELD: District court correctly denied Perkins’ motion to suppress. Under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and State v. Nece, 303 Kan. 888 (2016)(Nece I), aff’d on reh’g, 306 Kan. 679 (2017)(Nece II), Perkins’ consent was coerced because he was told it was a crime to refuse the test, but officer was permitted to conduct the breath test in this case as a lawful search incident to arrest.

Additionally, the breath test result was admissible because the officer, in good faith, acted in reliance on the implied consent statute before it was ruled unconstitutional by the Kansas Supreme Court.

CONCURRENCE (Atcheson, J.): Agrees the good-faith exception to the exclusionary rule applies here, and district court’s denial of the suppression motion should have been affirmed on that basis alone. Majority should have declined to explore alternative pathway of search-incident-to-arrest exception to the Fourth Amendment warrant requirement.

68

The Journal of the Kansas Bar Association

He is unpersuaded that the search-incident-arrest exception provides an alternative rationale in this case, and voices risk of implicitly promoting untoward government action and Fourth Amendment violations.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025; K.S.A. 2014 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B) CONSTITUTIONAL—TRAFFIC—SENTENCING STATE V. WILLIAMS SEDGWICK DISTRICT COURT— REVERSED IN PART, VACATED IN PART NO. 116,068— MARCH 9, 2018

FACTS: Williams was charged with refusing to submit to a breath test, felony DUI, and failure to maintain a single lane.

Because he was charged with a felony, the complaint referenced a prior DUI conviction from municipal court. Williams filed a motion to dismiss the refusal to test count, claiming that the statute unconstitutionally criminalized his failure to submit to a breath test. He also claimed that his prior felony conviction could not be used to enhance his sentence. After that motion was denied, the case was tried, and Williams was found guilty. He objected at sentencing to the enhancement.

He appealed his conviction and sentence.

ISSUES: (1) Validity of conviction for failure to submit to a breath test; (2) Constitutionality of sentence HELD: Because K.S.A. 2016 Supp.8-1025 was found to be unconstitutional, Williams' conviction for failure to submit to a breath test must be vacated. There is a clear difference between the municipal ordinance that served as the basis for Williams' prior conviction and the state statute. The Wichita ordinance was broader than the state statute, which means that convictions obtained under the ordinance cannot be used to enhance a punishment.

STATUTES: K.S.A. 2016 Supp. 8-1014, -1025, -1485, -1567, -1567(a), -1567(b)(1)(B), -1567(i)(1), -1567(j), 216811(c), -6811(e); K.S.A. 2012 Supp. 8-1025

appellate decisions

Appellate Practice Reminders From the Appellate Court Clerk's Office April Fools and Follies - PART I. In the Appellate Clerk's Office, we are sometimes tickled with the use of words by pro se litigants and even attorneys.

Make sure you understand the following legal terms and use them correctly.

Moot point = When an issue or argument will not affect the outcome of a case.

Mute Point = This phrase really doesn't exist, unless your profession happens to be that of a street mime.

Per se = Literally means "by itself" but in the law it has specific definitions (e.g. "negligence per se").

Pro se = When a litigant represents himself or herself in a legal matter.

Due process = A legal term that generally means that a person was given notice and an opportunity to be heard.

Due diligence = The work necessary to protect a client in a transaction.

Commonly misused as "do process" and "do diligence".

Tortious = Relating to a tort or civil wrong. "Tortious conduct" refers to actions that make a person legally culpable of a tort.

Tortuous = Means "twisted" and is often used to describe someone's argument if it isn't straight-forward.

Torturous = Characterized by, involving, or causing excruciating pain or suffering. Hopefully your arguments are not Tortuous AND Torturous. Dilly. Dilly.

Stay tuned next month for a second list of commonly misused words we have heard in the Appellate Clerk's Office. n For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts.

(785) 296-3229, Douglas T. Shima, Clerk.

The ABA and the KBA have partnered up to save you money!

KBA members will receive a 15% discount on most all ABA books!

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

www.ksbar.org | April 2018 69

ABA FREE LEGAL ANSWERS

WHAT IS ABA FREE LEGAL ANSWERS?

ABA Free Legal Answers increases pro bono opportunities:

ABA Free Legal Answers allows users to pose legal questions to be answered by volunteer attorneys: • Users will need to meet income eligibility guidelines

• Convenient pro bono opportunity that attorneys can fit into their

• Questions must be regarding civil legal matters

• Reaches volunteer populations with restricted time in which to

• Answers will be provided by volunteer attorneys in the users’

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

schedule • Attorneys can log in and provide answers 24/7/365

provide pro bono, such as stay-at-home parents, corporate attorneys, and government attorneys The American Bar Association offers: • No cost to participating states • Malpractice insurance for all volunteer attorneys will be provided

ABA Free Legal Answers increases services to low-income populations:

• Web hosting will be provided

• Allows users in rural areas to access legal resources from across

and collect and analyze data

• A national staff person to maintain the site, manage the queue,

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

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.

• OnlineTNjustice.org—the Tennessee model for ABA Free Legal

Answers—has, in its few years of service, received over 10,000 legal questions

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

abafreelegalanswers.org

70

The Journal of the Kansas Bar Association

© 2016 ABA, All Rights Reserved.

BECAUSE...

your firm deserves the best protection for the greatest value.

more state bars, including yours, endorse ALPS than any other carrier. if you get a claim, your claim will be handled by licensed attorneys.

BECAUSE BAD THINGS CAN

HAPPEN TO GOOD LAWYERS Find out more about your KBA-endorsed carrier at:

www.alpsnet.com/kbajournal THE NATION’S LARGEST DIRECT WRITER OF LAWYERS’ MALPRACTICE INSURANCE

(800) 367-2577

www.alpsnet.com

learnmore@alpsnet.com www.ksbar.org | April 2018 71

classified advertisements

Classified Advertisements Positions Available Advocate – Disability Crime Victims Unit Help obtain justice for victims of crime with disabilities. Advocate sought by Disability Rights Center of Kansas to advocate for crime victims with disabilities. 40 hour a week position, yearly pay is approx $32K, but depends on experience. Paralegals encouraged to apply. Great benefits.

Employer-paid BCBS health insurance, KPERS retirement, etc. Questions? Need an alternative format? Contact DRC: 1-877776-1541 for info@drckansas.org. Get the full job description & application at www. drckansas.org/about-us/jobapp Appellate attorney with >275 published opinions available to work on brief counseling, brief writing, oral argument, and oral argument preparation. Contact Steve Obermeier at (913) 205-1584, or steve.obermeier@outlook.com.

Attorney/Administrator–Disability Crime Victims Unit Help obtain justice for victims of crime with disabilities. Licensed attorney sought by Disability Rights Center of Kansas to provide legal services to crime victims with disabilities & to administer the federal grant. Experience administering grant programs a plus. Salary approx. $62,500, but depends on experience. Great benefits. Employer-paid BCBS health insurance, KPERS retirement, etc. Questions?

Need an alternative format? Contact DRC: 1-877-776-1541 or info@drckansas.org.

Get the full job description & application atwww.drckansas.org/about-us/jobapp Attorney Position Available. Arn, Mullins, Unruh, Kuhn & Wilson LLP, established Wichita law firm seeks associate and/or lateral hire. Minimum two (2) years’ experience in Civil, Family, Litigation and General Practice. Attractive benefits, including health insurance, 401(k), disability/life insurance. Please forward resume, introductory letter and writing sample(s) to: Kris J. Kuhn (kkuhn@arnmullins.com).

Attorney Position Available. Young, Bogle, McCausland, Wells & Blanchard, a downtown Wichita law firm seeks associate or lateral hire. At least three years’ experience in civil litigation/general practice and must be admitted to the Kansas Bar. Equal opportunity employer. Competitive benefits, including health insurance. Email resume, introductory letter, writing sample, and salary requirements to Paul McCausland, p.mccausland@youngboglelaw.com.

72

The Journal of the Kansas Bar Association

City of Wichita, Kansas • Assistant City Attorney III The City of Wichita Department of Law is currently accepting applications for an Assistant City Attorney III. We are seeking a highly qualified attorney with demonstrated experience in public sector employment law and labor relations for public safety agencies. Requirements include a minimum of four years’ experience in professional legal work, graduation from an accredited school of law, and admittance to practice before the Supreme Court of the State of Kansas. Apply online at www.wichita.gov Crow & Associates, Leavenworth, seeks associate attorney. Benefits include health/ dental insurance. Salary negotiable. Send resume to mikecrow@crowlegal.com Kennedy Berkley Yarnevich & Williamson, Chtd. seeks an attorney with at least five years’ experience in domestic and civil litigation practice. Please send introductory letter and resume for consideration to lherbic@kenberk.com.

McPherson firm seeks an associate attorney. Our firm is engaged in general practice in a community of approximately 13,000.

Salary is negotiable. Must reside in McPherson. Please send introductory letter and resume to: tkarstetter@kklawoffices.com Overland Park Law Firm. Ferree, Bunn, Rundberg & Ridgway seeking attorney experienced in complex Estate Planning and Probate work. Must be licensed in Missouri and Kansas. If interested, please forward introductory letter and resume for consideration to pbunn@fbr2law.com Overland Park/Corporate Woods Law Firm.

Jones & McCoy, P.A. seeking experienced associate attorney with 3+ years of civil litigation experience in business, estates and trust, family law, personal injury and other civil matters. Must have Kansas and Missouri licenses. Great opportunity for the right person to learn and grow their practice. Please send cover letter and resume to brant@jones-mccoy.com.

Part-Time Legal Assistant. A private law firm in Topeka has an immediate opening for a qualified Legal Assistant processing collections. Experience in general office administration required and legal office experience is preferred. Only applicants meeting specific criteria will be considered; please contact for duties and requirements. Please send resume and cover letter for consider-

ation to the attn. of Alisia at info@probascolaw.com or via fax (785) 233-2384.

Wanted Immediately: Attorney specializing in Criminal Defense Research & Writing to join fast-paced, 32-year-young criminal defense firm with a vision for the future and a state and federal national practice, including white collar. Telecommuting option available. Please send resume and 3 writing samples to Monnat & Spurrier, Chartered, 200 West Douglas, Suite 830, Wichita, Kansas 67202, email to receptionroom@monnat. com or fax to 316-264-4785.

Attorney Services Appeals. Experienced trial and appellate attorney available for state and federal appellate case referrals. Licensed before state courts of Kansas and Colorado, U.S. Supreme Court, and various circuit courts of appeals including the Tenth Circuit Court of Appeals. Listed, Who’s Who in American Law. Work featured in The New York Times and The Washington Post. Author of numerous legal articles and Am. Jur. Trials treatise on constitutional tort law. Trial perspective at the appellate court level. Reasonable rates, fee arrangements. Contact John B. Roesler, Attorney at Law, PO Box 604, Lawrence, Kansas 66044, (303) 929-2244, jroesler@lawyer.com.

Contract brief writing. Experienced brief writer is willing to take in appellate proceedings for any civil matter. Attorney has briefed approximately 40 cases before the Kansas Court of Appeals and 15 briefs before the Tenth Circuit, both with excellent results. If you simply don’t have the time to help your clients after the final judgment comes down, call or email to learn more.

Jennifer Hill, (316) 263-5851 or email jhill@mcdonaldtinker.com.

Contract brief writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions.

Attorney has briefed numerous appeals in both the Kansas and federal appellate courts.

Contact me if you need a quality brief.

Michael Jilka, (785) 218-2999 or email mjilka@jilkalaw.com.

Estate & trust litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com.

classified advertisements

Florida legal needs. I’m here to help. Florida Bar board certified appellate lawyer and experienced trial lawyer. Contact tom@ twylaw.com or visit www.TomAppeals.com.

Also admitted to active practice in Kansas, 10th and 11th Circuit Courts of Appeal, and U.S. Supreme Court.

QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 856-1628 or email cgb@barnhillatlaw.com.

Security Expert Witness. Board Certified Protection Professional and former Senior Police Commander providing forensic consulting to both plaintiff and defense counsel in all areas/venues of security negligence. A comprehensive CV, impeccable reputation and both criminal and civil experience equate to expert litigation support.

Michael S. D’Angelo, CPP. Secure Direction Consulting, LLC. www.securedirection.net.

(786) 444-1109. expert@securedirection.net Veterans services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.

Office Space Available 2 Updated Office Spaces for Lease—601 N. Mur-Len Rd. Ste. 20, Olathe, KS 66062.

Office 1) Large window with large ledge; Office 2) Storage closet and large picture window. *Coffee bar, waiting area and receptionist/paralegal area. *Fax, Wifi and ground floor parking. Call Chris Fletcher: (913) 390-8555 Large office space now available at One Hallbrook Place in Leawood, KS. Two con

ference rooms, kitchen, high-speed internet, postage services, copier/fax all included. For more information or to schedule a viewing, contact Bryson Cloon at (913) 323-4500 Leawood Law Office. Looking for office sharing and/or work sharing arrangement, ideally with estate planning/probate attorney, although any civil practice is welcome.

Conference room, phone system, internet, high-speed copier/printer, and lunchroom.

Plenty of surface parking. In a great area in south Leawood—bright and modern space on second floor of bank building. Contact Paul Snyder (913) 685-3900 or psnyder@ snyderlawfirmllc.com.

Office for Rent. 12' x 15' office space for rent at I-435 and Nall Ave., Overland Park, Kansas. Receptionist provided. Internet access and conference rooms are available.

Rent $850 per month, with the possibility of trading rent for work on some cases.

Possibility for referrals from three other attorneys in the suite. For more information, contact Samantha Arbegast at 913-6529937 or scr@theronanlawfirm.com Professional office space available, for lease. The available space consists of one to two offices and an administrative staff bay, in a larger office building. No cost use of reception area, conference rooms, and high-speed internet. Located in southwest Topeka. Competitive rent. For more information, call 785-235-5367 or write Law Office, P.O. Box 67689, Topeka, KS 66667.

Seeking Office Space: Bilingual Immigration attorney with over 10 years of experience, looking to rent a conference room or office once or twice a month in Garden City, Kansas. No services needed other than a place to meet clients. We have served the immigrant community in Western Kansas for 9 years and have an ample client base.

Our office is a great source of referrals for a family or criminal attorney as we only practice immigration. Please reply to: erika.juradograham@gmail.com.

Selling full sets of the Kansas Reports and the Kansas Court of Appeals books. Also willing to donate them to a charity, government or quasi-government agency. Contact Douglas G. Waters, Jr., (913) 682-7343 or douglasgwaters1@gmail.com

www.ksbar.org | April 2018 73

74

The Journal of the Kansas Bar Association

www.ksbar.org | April 2018 75

A TRADITION OF SUCCESS

Scott E. Nutter Matthew E. Birch Lynn R. Johnson

816-474-0004 www.sjblaw.com

Victor A. Bergman

David R. Morantz

OUR EXPERIENCE PAYS We have a long history of success inside and outside

2600 Grand Boulevard, Suite 550 Kansas City, MO 64108

the courtroom. For over 40 years, we have maximized the value of cases referred to our firm and we will continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.

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