March/April 2021 Journal

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Supporting Your Success | March/April 2021 • Vol. 90 • No. 2

Industrial Hemp: History, Programs and Regulations Corporate Misconduct Obligations Law Practice in Territorial Kansas


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COVID-19 Perspectives from the Board of Governors


Industrial Hemp

Candice Alcaraz, Dell Marie Shanahan Swearer, John Shoemaker and Vincent M. Cox

Kenneth Titus and Stephanie Murray, Kansas Department of Agriculture


Up the Ladder or Out the Door: Corporate Counsel’s Obligations with Respect to Corporate Misconduct


J. Nick Badgerow

A Partnership Agreement from Territorial Kansas

M.H. Hoeflich and Sydney Buckley, University of Kansas School of Law


Continuing Legal Education


Law Students’ Corner


Members in the News



From the Young Lawyers Section President


Appellate Decisions


Appellate Practice Reminders


Substance & Style


Classified Advertisements


Law Practice Management Tips & Tricks


Advertisers Index


Diversity Corner


From the Kansas Bar Association President


From the Executive Director


From the Kansas Bar Foundation President

12 | March/April 2021 3

2020-21 KBA Officers & Board of Governors President Charles E. Branson, President-elect Hon. Cheryl Whelan,

2020-21 Journal Board of Editors Professor Emily Grant (Topeka), chair, Sarah G. Briley (Wichita), Hon. David E. Bruns (Topeka), Richard L. Budden (Kansas City), Kate Duncan Butler (Lawrence), Boyd A. Byers (Wichita), Sarah Fertig, Connie S. Hamilton (Manhattan), Lauren G. Hughes (McPherson), Michael T. Jilka (Lawrence), Lisa R. Jones (Ft. Myers, FL), Casey R. Law (McPherson), Deana R. Mead, Staff Liaison, Hon. Robert E. Nugent, Ret. (Wichita), Professor John C. Peck (Lawrence), Richard D. Ralls (Overland Park), Karen Renwick (Kansas City), Jennifer Salva (Kansas City), Teresa M. Schreffler (Wichita), Richard H. Seaton Sr. (Manhattan), Sarah B. Shattuck (Ashland), Michael Sichter (Kansas City), Richard D. Smith (Topeka), Katherine Tracy (Overland Park), Hon. Sarah E. Warner (Lenexa), Issaku Yamaashi (Overland Park), 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 Published by Peterson Publications, Inc., Topeka, KS, (785) 271-5801 The Journal of the Kansas Bar Association (ISSN 0022-8486) will publish combined issues throughout 2021 for a total of six issues this 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. Non-member 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 © 2021 Kansas Bar Association, Topeka, Kan. For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email For classified advertising information call (785) 234-5696 or email 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, P.O. Box 751080, Topeka, KS 66675-1080.

4 The Journal of the Kansas Bar Association

Vice President Nancy Morales Gonzalez, Secretary-Treasurer Laura Ice, Immediate Past President Mira Mdivani, Young Lawyers Section President Katherine E. Marples Simpson, Immediate Past President Mitch E. Biebighauser, District 1 Michael J. Fleming, Katie A. McClaflin, Katherine S. Clevenger, District 2 Bethany J. Roberts, District 3 Angela M. Meyer, District 4 Brian L. Williams, District 5 Vincent Cox, Terri J. Pemberton, District 6 Tish S. Morrical, District 7 William L. Townsley, III, Hon. Jeffrey E. Goering, Megan S. Monsour, District 8 Dell Marie Shanahan Swearer, District 9 Aaron L. Kite, District 10 Gregory A. Schwartz, District 11 Candice A. Alcaraz, District 12 Alexander P. Aguilera, Bruce A. Ney, John M. Shoemaker, At-Large Governor Eunice Peters, KDJA Representative Hon. Bruce T. Gatterman, KBA Delegate to ABA House Natalie G. Haag, Eric K. Rosenblad, ABA State Delegate Rachael K. Pirner, YL Delegate to ABA House Joslyn Kusiak, KBF Representative Scott M. Hill, Executive Director of the KBA/KBF Stacey Harden,


The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

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from the kansas bar association president

Marking an Anniversary By Charles E. Branson, KBA President, 2020-2021


ell, it is a year later. So, how ya doing? It is hard to believe it has been a year since we started shutting things down. It seems like yesterday and eons ago at the same time. I really did not want to write about this anniversary. I wish it would just become a distant memory. At the same time, it is hard not to mark this occasion. Certainly, it is not one to be celebrated in the traditions of birthdays, marriages, or new jobs. If anything, it is a time to take stock and remember the ones we have lost and the ones whose lives have been temporarily, or even permanently, changed by the calamity of the last twelve months. It was mid-March 2020 when my office started to send people home. We gathered our senior leadership and brainstormed how we could remote every task in the office. We planned how to keep our non-salaried members working so we would not disrupt their incomes and eventually their livelihood. We strategized and schemed a myriad of flexible schedules so people could still work while their homes became daycares, schools, and offices. We only thought we would have to do this for a couple of months at most. We were wrong. The changes we have faced as professionals in the last year has had a profound impact on our profession. According to a recent member survey by the American Bar Association, lawyers are feeling overwhelmed by the pressures of the job.1 Many contemplate exiting the profession, with women and lawyers of color especially feeling the strain of this new normal. Despite it all, there have been bright spots. As lawyers and judges, we have adapted and created new avenues to represent our clients, communicate with each other, and reimagine what our workday looks like. We have managed, if not in some cases survived, this misery and we will realize many achievements. Many of you have your own story to tell. Some of your colleagues have agreed to share their reflections on the past year in this publication. Please take a little bit of time from your day and read each one. Maybe you will be willing to share your own story. After all, every one of us has something important to contribute to this unfortunate anniversary. Anniversaries are an important part of life and allow us a chance to reflect how momentous events, both joyous and sad, shape us. As we mark the passing of a year, I hope each of you can reflect on this time, knowing that you are stronger and more ready to take on the future. u Charles E. Branson is President of the Kansas Bar Association for 2020-2021. He is an attorney with Fisher, Patterson, Sayler and Smith in the firm’s Topeka office. Branson is the former Douglas County District Attorney and held office for 16 years. Prior to public service, Branson was in private practice in Lawrence; his practice focused on civil and criminal litigation. A long-time active member of the KBA, Branson has served on the Executive Committee of the Board of Governors, has been the KBA Representative on the Board of Trustees of the Bar Foundation, and has also been a member of the KBA Bench-Bar Committee and the KBF Scholarship Committee. Charles and his wife Kathy have two children, Chance and Grace, and live in Lawrence. References


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COVID-19 perspectives

COVID-19 Perspectives from the Board of Governors Candice Alcaraz – District 11 t the start of 2020, I worked in the office every day and would come in on the weekends as necessary to keep up with my caseload. I had many trials scheduled up until June of 2020 with at least one month in which I would be in trial every week. After a heavy trial schedule, I was looking forward to a weeklong Caribbean cruise. By March of 2020, everything had changed. The world was shut down. The courts were at a standstill as we all tried to cope with the days ahead and an uncertain future. In my district, we began the task of scheduling hearings in person versus by Zoom, setting up checkpoints for checking temperatures, installing hand sanitizer units all over the courthouse, and limiting the number of people in the courthouse daily. We also adopted a mediation policy to assist parties in coming to resolutions or at least fostering more conversation with all parties involved given the state of future trial settings. In my office, we set up networks to enable both attorneys and support staff to work effectively from home. We adopted working schedules to ensure we are following the requirements and limits imposed by the various levels of government. In fact, when the pandemic first became national news, people in my office began making masks to ensure everyone was safe here and in the community. It has surely brought us together in a united fight against the spread of the virus. Lastly, on a personal note, the Caribbean cruise was canceled. However, I was able to do many of the things I had been putting off until my schedule was less restrictive. I began spending more time outside going on walks, riding my bike, and reading in the park like in my college days. The pandemic has slowed things down professionally for now, but


once we begin our normal ways of being, the real work will begin again. Dell Marie Shanahan Swearer – District 8 I have never been an athlete, but 2020 taught me how to pivot. Like many in District 8, I’ve worked from home during the pandemic. My home office now sports multiple monitors and a laptop on a much larger desk, a comfy chair, and other equipment needed to serve our donors, staff, and committee and board members. And because of the telecommute, my technology skills improved dramatically—just as I turned 60. “Zoom,” “Zoom-bombing,” and “You’re on mute, Karen” are now part of my vocabulary. Working from home has allowed me to take breaks from the screens for yoga, quick walks or bike rides, or for picking tomatoes from the COVID garden started by a neighbor and me. I spend more time with my cat, although she feigns indifference but mightily complains when I return home from a day spent in our downtown office. The downside of working from home is real, too. I miss the energy and creativity generated while connecting with people

u | March/April 2021 7

COVID-19 perspectives t in person. Zoom just doesn’t cut it for gatherings with family, friends and colleagues. My work/life balance now requires more intentionality. As we hope for a return to “normal,” my goal is to keep learning how to use technology so that I may work smarter. And when a friend or colleague asks, “Can you grab lunch?” I’m going to say yes more. I plan to approach my future with gratitude for my health and the knowledge I am resilient— despite my continued inability to shoot a basket. John Shoemaker – District 12 The COVID-19 lockdown, or “circuit breaker” as it was referred to in Singapore, started for us on April 7, 2020. That began approximately 3 months of a 100% work from home policy for our practice. We then transitioned to every other day at the office approach and eventually settled into an every day at the office approach by late September, but limited to either a morning or afternoon shift. In our tax planning practice, we were able to be fully productive while working remotely and the overall restrictions globally had the effect of allowing downtime for many clients to consider structuring, planning, renunciation, and disclosure next steps which they previously had put off to that ever out of reach “another day”. The relevant Singapore regulatory agencies and the Singapore Law Society moved nimbly to accommodate special remote document witnessing and signing procedures which allowed legal and financial transactions to move ahead in a timely manner during the restricted periods. Although remote access to firm systems and Zoom client calls allowed us to stay working efficiently during circuit breaker, I have been a bit surprised at how eager clients and referral agencies have been to have in-person meetings now that this is allowed. Travel in the region remains quite depressed, even for business, although there are special protocols in place requiring extensive pre- and post-travel COVID testing to allow travel for urgent needs. The Singapore government has committed to providing vaccinations to employment pass holders like my wife Kelli and me. However, it is our employment pass status which presents the largest logistical challenge to travel for work (or for personal trips back to the States). Leaving Singapore is no issue, but we would have to be granted special permission to return and would face a two week in-hotel, in-room quarantine (at our own expense... conservatively a $1,500 - 2,000 cost each). Overall, we feel incredibly lucky to have ridden out the pandemic in the nation which arguably has dealt with COVID-19 better than any other country on the face of the earth. In a nation of just under 6 million, as of today we have 8 The Journal of the Kansas Bar Association

had fewer than 30 deaths from COVID-19. We do, however, miss Kansas terribly and find ourselves hoping that we will soon be able to click our heels and return home. Vincent M. Cox – District 5 When I reflect on what I have learned while practicing law during the COVID-19 pandemic, three things come to mind. First, Kansans are extremely resilient people. A sizable portion of my practice consists of business law and transactions. During COVID-19, I have witnessed admirable creativity and determination from my business clients. I watched my clients protect their business, stabilize their business, and grow their business, all during a pandemic. I have also witnessed resiliency in our profession. I have watched lawyers and judges use creativity and patience to allow the legal system in this state to continue, almost uninterrupted. Second, I learned that I could adjust to difficult circumstances, and prevail. The pandemic caused me to face some significant hurdles. Among those were the following: Managing childcare and schooling while schools have been either totally or partially closed; figuring out how to assist clients while not being able to meet with them under normal circumstances; and answering complex and unprecedented legal questions. These are just a few examples. Almost all of us have faced these challenges and prevailed. Finally, the pandemic has reinforced in me that my favorite part of this profession is the personal interactions that take place in the practice of law. When I look back, that is why I went into this profession. I spent my childhood tagging along with my dad (a lawyer and former municipal court judge) and watching him interact with the public, his clients, and other attorneys. I wanted to be a part of that. I enjoy meeting with my clients in person, so I can get to know them on a personal level. I enjoy meeting with other attorneys in person, whether as opponents, colleagues, or friends. I enjoy going to the courthouse and seeing the other lawyers and judges and making my court room arguments and presentations in person. So, in this regard, the pandemic has been difficult. I started out really disliking Zoom. However, as I mentioned above, I have learned to adjust, and I have prevailed. I appreciate that technology has allowed me to continue my practice of law during these unique times. I look forward to the day when personal interactions are again the norm, and not the exception. Overall, I am thankful. I am thankful for my profession, I am thankful for my clients, and I am thankful for my colleagues. u

from the executive director

KBA is Active in the Legislature By Stacey Harden, Executive Director, KBA/KBF


pring is finally arriving in Kansas, which means two things: dealing with the return of seasonal allergies and watching our State government in action.

The Kansas Legislature reached its halfway point of the 2021 session on March 5 with the passage of the House of Origin deadline, marking the date in which all non-exempt legislation must advance out of its House of Introduction, or is considered dead for the remainder of the session. However, several exempt committees continue to work through legislative initials. These exempt committees include House Appropriations, Senate Ways and Means, House and Senate Federal and State Affairs, and House Taxation. The House and Senate Judiciary Committees are not exempt committees, and all legislation must be passed out prior to the deadline to be considered. Coming into the 2021 Legislative Session, the Kansas Bar Association’s Board of Governors made it a priority to support the Kansas Judicial Branch with its requested budget enhancements. These enhancements include additional funding for raises for court employees, all levels of judges/justices and additional court service officers. The KBA has voiced our support through legislative channels, appearing before the House General Government Committee, and by working with stakeholders to urge passage of the judicial branch budget. The Board of Governors has recognized the difficulties our criminal defense system has suffered these past several years. To support the Kansas Board of Indigent Defense Services, the KBA supported its budget requests and ancillary proposals to strengthen the criminal justice process in Kansas. Heather Cessna, Executive Director of BIDS, requested additional funding for recruitment of new defense counsel, retention of current counsel, increase to assigned counsel hourly rate, and an upgraded case management system. BIDS also requested training and several office staff, investigators, and legal assistants. The KBA Past President’s Committee and the KBA Access to Justice Committee have reached out to specific legislators to provide background and discuss the importance of a properly funded criminal defense system. The KBA will continue these efforts, on both fronts, throughout the 2021 session and beyond. The Legislature moves quickly and things can change as fast as the Kansas weather. Joe Molina, the KBA’s Director of Legislative Services, provides updates in the KBA’s updated Weekly email blast as well as on Twitter. You can search and follow Joe’s updates on Twitter by searching for @KansasBarLeg. If you have not been receiving your KBA Weekly email blast, contact the KBA to make sure we have your preferred email address on file. Stay well. Enjoy Spring. And best of luck with the return of allergy season. I, for one, will need that extra luck. u Stacey Harden joined the KBA in the Fall of 2019 as the Accounting and Finance Manager before becoming Executive Director in August 2020. Stacey attended Baker University where she earned a bachelor’s degree in Business, with an emphasis in Accounting, as well as a Master’s Degree in Business Administration. | March/April 2021 9

from the kansas bar foundation president

IOLTA Accounts By Scott Hill, KBF President, 2020-2021


his year, as President of your Kansas Bar Foundation (KBF), I have undertaken a re-education campaign of sorts, to re-engage our fellows by spotlighting a few of the invaluable programs administered by our organization. I began with our newest program – the Community Redevelopment & Homeowners Assistance Grant Program – which also happens to be the largest fund currently administered by the KBF. Last issue I focused on the $20,000 or more of scholarships awarded annually to area law students. This month, I turn our focus to one of our most historically impactful programs, the IOLTA program. IOLTA stands for Interest on Lawyers Trust Accounts. From “Trust Funds 101” we remember that a lawyer’s obligations regarding client funds and property are set out in KRPC 1.15, Safekeeping of Property. Highly summarized, a lawyer must safeguard and segregate the funds of a client. A lawyer trust account is a special checking account, which must be maintained in an insured account in a financial institution located within the State of Kansas and approved by the Disciplinary Administrator’s Office as a depository for lawyer trust accounts. Typically, trust accounts will be one of four varieties: 1. A separate interest-bearing account for each matter, on which the interest will be paid to the client or a third party. 2. A pooled noninterest-bearing account for the deposit of all trust funds that are not invested for the benefit of the client or third person if the lawyer or law firm elects to decline under Rule 1.15(d)(3)(iv). 3. A pooled interest-bearing account for the deposit of all trust funds that are nominal in amount or that are expected to be held for a brief period, with interest earnings paid to the Kansas Bar Foundation under the IOLTA program. 4. A pooled interest-bearing account for the deposit of all trust funds that are nominal in amount or expected to be held for a brief period, with interest earnings credited proportionately to the client or third party for the benefit of whom the funds are held. The IOLTA program was established by Supreme Court Rule in 1984. Under the IOLTA program, a lawyer is permitted – indeed encouraged – to make the lawyer trust account productive for the profession. An IOLTA account is designed for shortterm and nominal deposits of client funds that would ordinarily be pooled together in a non-interest-bearing checking account. The theory behind the IOLTA program is that non-interest-bearing accounts do produce income that is being kept as a windfall by the financial institution. This windfall is diverted by the IOLTA program from the bank to the KBF where it is used to fund legal aid services and other law-related programs. The Kansas Bar Foundation collects the interest on these accounts statewide and the revenue is used to fund civil legal services for the poor and legal programs to improve the administration of justice. IOLTA grant applications are accepted from Kansas nonprofit organizations or programs that provide the following: Civil Legal Services: The Foundation has committed itself to assisting with improving the access to the legal system for all Kansans. One of the key methods of accomplishing this objective is by providing grants to civil legal service programs that provide services to low-income citizens. In the past, these grants have concentrated on such high-impact clients as victims of domestic violence, the elderly, and children. Funds are made available to assist with administering local and state bar pro bono

10 The Journal of the Kansas Bar Association

legal services programs, reduced fee programs and to provide technical support for legal service staff. Law-Related Education (LRE): The second largest category receiving IOLTA funds has been law-related education projects for the public. A variety of public education seminars on the Constitution have received funding. These seminars have been one-day to day-and-a-half programs developed for secondary school social studies teachers. Funds were also granted to assist with the Close-Up project, Citizen Bee programs, the LRE Clearinghouse, the Law Wise newsletter, the statewide Mock Trial competition, and legal rights and responsibilities booklets.

Stevens & Brand are pleased to welcome Richard Schoenfeld and Whitney Casement, and are excited to have them join our team!

Administration of Justice: The Foundation will consider grants to improve the administration of justice in Kansas. This area has covered such concerns as alternative procedures for the resolution of disputes, promotion and support for programs facilitating access to the legal system, and improvements in the court system. This past year, through the IOLTA program, the KBF was able to award over $160,000 in grants to nine Kansas programs: • • • • • • • • •

Kansas Legal Services Kansas CASA National Institute for Trial Advocacy KBA Law Related Education Committee The Expungement Project, Inc. Kansas Coalition Against Sexual and Domestic Violence Safehome Kansas Institute for Peace & Conflict Resolution KBA YLS for the 2021 High School Mock Trial Competition

For more information about these grants or for the many other programs administered by the KBF, please visit our website at u Scott Hill is a partner at Hite, Fanning Honeyman L.L.P. He concentrates his practice in banking, business transactions, business litigation and real estate. Scott sits on his firm’s management committee and devotes substantial time to his firm’s management and marketing efforts. Scott was raised in Independence, Kansas. He graduated from Pittsburg State University and Washburn University School of Law. Scott earned his MBA at Washburn during law school. Scott is married to Jennifer Hill of McDonald Tinker. He has two sons (age 11 and 7).



U.S. News – Best Lawyers® has announced the publication of its 2021 “Best Law Firms” rankings. T he Law rence and T opeka firm Stevens & Brand, LLP, has received recognition as a 2021 Tier 1 Firm (the highest level) in the T opeka Metropolitan region in the practice areas of Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law , Commercial Litigation, Criminal Defense – General P ractice, Education Law , Family Law , and T rusts & Estates Law . | March/April 2021 11

from the young lawyers section president

The Young Lawyers Section Institutes its District Representative Initiative: Reaching Lawyers Across the State By Kate Marples Simpson, YLS President, 2020-2021


he YLS Board of Directors enthusiastically announces the roll-out of its premier initiative for the 2020-2021 leadership year. Thanks to the Kansas Board of Governors, the YLS Board of Directors, and leading lawyers across the state nominating local leaders, the below-listed lawyers accepted positions in the first class of KBA YLS District Representatives. Our YLS District Representatives will encourage intrastate networking, help plan local events in their districts, provide insight into what the KBA and especially the YLS can do to better serve our members, and hopefully use their District Representative experience to learn about the KBA and take on other KBA leadership roles as their careers progress. These individuals are the second group of 22 District Representatives. The first group was introduced in the last KBA Journal. Please reach out to your local District Representative, thank them for their service, and congratulate them for being a leader among their peers. We are seeking an additional District Representative for Lawrence, Emporia, and Topeka. If you know someone who might be a great fit for this opportunity, please email Ashley McGee

Ashley graduated from Washburn University with her Bachelor’s Degree in 2015 and Washburn University School of Law in the Spring of 2018. During her law school tenure, Ashley feels fortunate to have completed a legal internship with the Lyon County Attorney’s Office. Upon passing the bar, she was officially offered a full-time position with the Lyon County Attorney’s Office as an Assistant County Attorney. In addition to working in prosecution, Ashley is the Treasurer of her local bar association. As a Lyon County native, Ashley enjoys practicing and being involved in her home community. 12 The Journal of the Kansas Bar Association

Ashley Rohleder

Ashley Rohleder is from Gorham, Kansas. Since graduating from Russell High School, she earned her bachelor’s degree from Pittsburg State University, Master of Liberal Arts from Baker University and Juris Doctor from Washburn University School of Law. Prior to joining Kansas Association of School Boards Legal Services as a staff attorney, she was in private practice in Topeka, practicing primarily in children and family law. Outside of KASB, she is active in the Women Attorneys Association of Topeka, Sam A. Crow Inn of Court, and the Topeka Bar Association Young Lawyers Division.

Beth Bosch

Beth’s law practice is dedicated to real estate matters, energy law, contract preparation and negotiation, estate planning, and probate. Beth grew up in De Soto, Kansas. She attended college at Kansas State University, where she received a B.A. and B.S. in 2015. She attended law school at Washburn University School of Law, where she received her Juris Doctor in 2018. While in law school, Beth was a member of The Washburn Law Journal, serving as an Articles Editor. Beth received a Certificate in Oil and Gas and a Certificate in Natural Resources, both with distinction. Beth joined the law firm of Hampton & Royce, L.C. in August of 2018. Outside of work, Beth is involved in the Kansas Women Attorneys Association, serves on the Steering Committee for Salina Area Young Professionals and Alumnae Advisor Committee for the Kansas Beta Chapter for Pi Beta Phi, and volunteers for Camp Quality USA, Inc. Beth enjoys running, hiking, and snowboarding. Beth and her husband, Austin, have two shelter dogs, Bali and Chex.

Trent Byquist

Trent represents businesses and their owners in a wide variety of transactional matters, including contract negotiation and preparation, mergers and acquisitions, securities transactions, financing transactions, leasing, creation and termination of business entities, and general corporate matters. He routinely advises financial institutions of all sizes on operational, financial, and regulatory matters. Trent also helps franchisees and franchisors navigate and exploit the unique challenges and opportunities posed by the franchise relationship. Prior to joining Foulston Siefkin, Trent clerked for two years for the Honorable Lawton R. Nuss, former Chief Justice of the Supreme Court of Kansas.

Michael Andrusak

Mike focuses on work with banks and in real estate and litigation. Prior to joining Adams Jones Law Firm in Wichita, he worked in Ulysses, Kansas for several years as a compliance director and attorney for an oil/gas pipeline construction company and worked as a solo practitioner. Mike has a Juris Doctor from the University of Kansas School of Law and obtained his undergraduate degrees from Pepperdine University.

Eliza Kassebaum

Eliza was born and raised in Charleston, South Carolina. She earned an undergraduate degree in Psychology from the College of Charleston. Afterwards, she attended the University of Kansas School of Law and graduated with a Juris Doctor in 2020. She currently works as an Assistant Ford County Attorney in Dodge City, Kansas.

Taylor Hines

Taylor is currently an Assistant District Attorney with the Wyandotte County District Attorney’s Office. Taylor received her undergraduate degree in Political Science from the University of Kansas and subsequently obtained her Juris Doctor from the University of Kansas School of Law in 2018. Taylor is a member of the Board of Governors for the Wyandotte County Bar Association and serves on the Steering Committee for Alive & Thrive Wyandotte County.

Bianca Finney

Bianca is an Assistant District Attorney in Wyandotte County, Kansas. Bianca graduated from the University of Missouri-Kansas City School of Law in 2017. Upon passage of the Missouri Bar, Bianca clerked for the Honorable Judge Justine Del Muro, in Jackson County, Missouri. Bianca is a Seattle native. She enjoys traveling, spending time with family and friends, and loves music and film. u Kate Marples Simpson is an associate at Stevens & Brand, L.L.P., in Lawrence. She previously clerked for the Hon. Carlos Murguia of the United States District Court for the District of Kansas in Kansas City, Kansas, and for the Hon. K. Gary Sebelius for the U.S. District Court in Topeka. Kate graduated from KU Law. She is president of the Federal Bar Association for the Districts of Kansas and Western Missouri, president of the Judge Hugh Means American Inn of Court, and a member of the KBA Board of Publishers. In her free time, Kate enjoys gardening, hanging out with her husband, Jon, and their dog Scout taking care of their 18 chickens, and ironman training. | March/April 2021 13

substance & style

Referring to Race By Shawn Watts


dentity has come to the forefront of culture and lawyers are wondering how to keep up with the changing terminology of the times. Using the correct term for a client’s or colleague’s racial identity in person and in writing is both the right thing to do and best practice. However, this best practice is difficult as terms we may deem “politically correct” are sometimes at odds with many terms clients prefer for themselves.1

A lawyer must expect to work with racially diverse clients or at least work in racially diverse environments. That expectation imparts a responsibility to work to understand the language of racial diversity.

For instance, the word “Latinx” has come into vogue. For the last several decades “Latino” has generally referred to anyone of Latin descent. Because Spanish nouns have grammatical gender “Latino” refers to a man and “Latina” refers to a woman. Latinx, on the other hand, is a term meant to be more inclusive of the chosen gender identity of those who claim a Latin cultural heritage. Despite Latinx’s rise in popularity in print media, broadcast media, and legal academia, one group who has not embraced the term is Latinos. A Pew Research Center national survey of Latinos shows that only about one-in-four have even heard of the term and only 3% say they use it.2 Those who do are largely between the ages of 18 and 29.3 Like “Latinx,” alternate terms for Indians are also gaining popularity. “Native American” is now the term most used in media. Still, that is not the term most Indians prefer.4 While non-Indians often find the term offensive, Bobby Wilson, Sisseton-Wahpeton Dakota and prominent comedian, says, “Indian seems to be universal and others can identify with it.”5 Anecdotally, like with “Latinx,” the divide between the use of “Indian” and “Native American” seems to be generational with people over 30 years-old preferring “Indian” and those under 30 years-old uncomfortable with the term. The most striking controversy over preferred identity terms, however, happened in New York in 2014 when the terms “Black, African-American, or Negro” appeared on a juror information card as a category for race.6 The juror who noticed the term on the card was outraged, and crossed out the word “Negro” writing next to the category, “offensive! It’s 2014!”7 So how did a word so seemingly out of date and politically incorrect make it onto a juror card in one of the most liberal cities in America? In a word: inclusivity. The commissioner 14 The Journal of the Kansas Bar Association

of jurors in New York is required to collect demographic data from jurors, including juror race, and the categories used on the juror form mirror language of the United States Census.8 For the 1990 census the term “Negro” had been removed because, despite the term being adopted by Black Americans as a signifier of educated and empowered individuals, it was thought to have fallen out of favor9. Then, when the term was missing on the 1990 census 56,000 people self-identified as “Negro” by writing the term in under the “some other race” category.10 As a result, the term reappeared on the 2000 census in an effort to account for those 56,000 Black Americans who so strongly identified as “Negro” that “Black” and “African American” did not represent them. In other words, a term that was offensive to some Black Americans in 2010 was the preferred term of other Black Americans at the same time. So, what is a conscientious lawyer to do? The following recommendations can help in navigating the difficult arena of racial identity: 1.

Know the prevailing sentiment: A lawyer must expect to work with racially diverse clients or at least work in racially diverse environments. That expectation imparts a responsibility to work to understand the language of racial diversity. This responsibility extends to knowing the most prevalent terms for various races and also acquainting one’s self with emerging terms for racial identity. Traditional media can aid in confirming the

most popular terms and social media is a great source for emerging terms. And, of course, having conversations with people of various ages and ethnicities is also a good way to learn the preferred terms for racial identity. 2. Know your clients and colleagues: Making yourself aware of terms for racial identity is a great start. But, it is just that: a start. The next step is to get to know the people you engage as clients, the people in your immediate organization, and the people in the various fora in which you operate. Find out who they are. Not only is it tremendously interesting and rewarding to hear other people’s stories, but it is also enlightening. You will learn so much, not the least of which is how people identify and the terms they use for those identities. That effort will provide you the knowledge you need to get it right when you refer to your clients and colleagues, and it will likely buy you the grace you need in the event that you inadvertently get it wrong. 3. Know your forum: Many cannot or will not contemplate new terms for racial identity, especially those terms only just now emerging. It is heartbreaking to face the reality that bias, unconscious or conscious, can affect outcomes for clients. Law, of all professional fields, should not have any room for bias. But, this ideal simply is not reality. Where you know this bias may detrimentally affect outcomes for your client, it is best practice to have difficult conversations with your clients and inform them of the possibility. Then, after your client understands that bias may work against her interests you have to ask her if referring to her in writing or otherwise by her preferred term is still what she would like you to do. It is an infuriating piece of advice to have to write and an even more infuriating piece of advice to follow.

Citizen of the Cherokee Nation of Oklahoma, Watts graduated from Columbia Law School, where he won the Jane Marks Murphy Prize for clinical advocacy and was a Harlan Fiske Stone Scholar.​ References

Joyce Rosenberg, A Singular Understanding of ‘They’, 84 J. of the Kan. Bar Ann’n n. 4 (2016). The author provides recommendations on navigating gender identity in the legal context. 2. Luis Noe-Bustamante et al., About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Rsch. Ctr. (Aug. 11, 2020), sites/5/2020/08/PHGMD_2020.08.11_Latinx_FINAL.pdf. 3. Marisa Peñaloza, Latinx Is A Term Many Still Can’t Embrace, NPR (Oct. 1, 2020, 5:00 AM), 4. Amanda Blackhorse, Blackhorse: Do You Prefer ‘Native American’ or ‘American Indian’?, Indian Country Today (May 22, 2015), https:// 5. Id. 6. Haimy Assefa, ‘Negro’ on form draws ire of prospective juror in New York, CNN (Jan. 13, 2014, 5:12 PM), new-york-juror-form-negro/index.html. 7. Id. 8. N.Y. JUD. § 528. 9. Assefa, supra note 6. 10. Id. 1.

Racial identity is a sensitive subject. Arming yourself with knowledge of proper terms and a willingness to be sensitive to the preferences of your clients and colleagues are minimum requirements for good lawyering. If you conduct yourself with transparency and sensitivity in following the recommendations above, you will be making a positive contribution to your profession and create a better environment for those around you. u

Guidance Tailored to the Needs of Attorneys

Shawn Watts is a member of the KU Law lawyering faculty and a conflict resolution training expert for the United Nations. He was the Associate Director of the Mediation Clinic at Columbia Law School, teaching clinical courses in mediation and Native American peacemaking. He has been a visiting professor at both Yale Law School and National Taiwan University Law School in Taipei, Taiwan. A


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716 S. Kansas Ave., Topeka, KS 66603 | March/April 2021 15

law practice management tips & tricks

Play a Game By Larry N. Zimmerman


he stress of the pandemic prompted many to take up new hobbies. Some baked, some painted, and some quilted. I started reading and collecting Dungeons & Dragons and other role-playing game rulebooks. I discovered a hobby perfectly suited to honing lawyer skills while escaping a reality that has, frankly, become much too real for my tastes.

Character Creation

“Your first step in playing an adventurer in the Dungeons & Dragons game is to create a character of your own, a combination of game statistics, roleplaying hooks, and your imagination. You also invent the personality, appearance, and backstory of the character.” Once created, you become that character within each session of Dungeons & Dragons through role-play. You do not need to adopt funny voices or act out the character with Oscarworthy aplomb (but give it a try). However, it is vital to the game that you respond to challenges in-game as your character and experience the game world through his or her eyes. Empathy for your character’s motivations, fears, and desires develops your ability to fully join the fictional world and prompts unexpected and exciting stories. You can be a lawyer by day, but at the game table you must become Duergar, the unruly but loyal mountain dwarf. 16 The Journal of the Kansas Bar Association

This empathic ability to put oneself into the mind of another is a fundamental skill for lawyers as indicated in the ABA Draft Definition of the Practice of Law which says, “The ‘practice of law’ is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.” Every lawyer likely has a personal story where he was so wrapped up in a statute that he forgot his client’s objective. We have KRPC 2.1 to help us with this issue but the role-play of Dungeons & Dragons helps us practice supplanting our lawyer’s tunnel vision with empathy.

Narrative Exploration

Once the game party has each created their characters that merry band embarks on a quest. The quest can be for gold, for fame, to defeat a great dragon threatening a frontier town or any other challenge the human mind can imagine. Players work together (optimally) to plan and react on the way toward completing the quest and situations can often go sideways from what the players anticipate. For example, one trek through a darkened dungeon saw the party successfully and resoundingly defeat dozens of creatures before winding up at a dead end. The party carefully retraced its steps with great ease until arriving back at the starting point when an unlucky dice roll resulted in a messy confrontation that cost every character her weapons.

Would you like to play a game?

There is also some research to indicate that using our professional lawyering skills in an unrelated environment can increase mastery of those skills faster than simply using them at the office. Suddenly, the hack and slash approach to tackling the dungeon became a game of persuasion and evasion. Lawyer Bull Garlington of notes that, “…tabletop gaming Dungeons & Dragons requires you to be creative. It makes you tweak soft skills like teamwork, adaptability, problem-solving and conflict resolution. These form the bedrock for the social and intangible building blocks of a good team. Or a great career in law. You are participating in a story – both telling and hearing it.”

The entry to Dungeons & Dragons can seem daunting but it is imminently approachable with a group. There are two different starter sets – the Starter Set and the Essentials Kit – with simplified rules and everything needed to get started on a game. Both are available for under $20 from locally owned game shops, big box retailers, and online. Once the pandemic is under control, regular game sessions for new players will start popping up again at game shops, libraries, and bookstores. Once you have dipped your toes in Dungeons & Dragons, grab a few rule books for different role-playing game systems. It should be fascinating to lawyers to see how tweaking various rules results in very different gameplay. u 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.

Rules vs. Imagination

There is a plethora of rules to Dungeons & Dragons that are explained across multiple volumes but a game as open-ended as its players’ imaginations cannot predict everything. The unexpected twist is often the primary allure of the game so it is important that rules be balanced to allow and encourage exciting developments and innovative solutions. This tension between the rules and the narrative excitement can result in reimagining a character’s action, suspending a rule, or creating a house rule. This is the gamification of being a lawyer. We balance this same tension as we consult with clients, negotiate with opponents, draft statutes and contracts, and litigate. There is also some research to indicate that using our professional lawyering skills in an unrelated environment can increase mastery of those skills faster than simply using them at the office. My lawyer mentor often attributed his negotiation skills not to settling cases but to playing poker. The skill set was the same but the game table allowed experimentation and the rapid processing of challenges improved his skills faster than clients’ cases allowed. The same appears to be true of Dungeons & Dragons as lawyers experiment with creativity in rules-guided situations. A broader discussion of the value of play in Dungeons & Dragons for lawyers was recorded at the Harvard’s Berkman Klein Center in a conversation between law professor, Jonathan Zittrain and journalist Ethan Gilsdorf, author of Fantasy Freaks and Gaming Geeks.

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18 The Journal of the Kansas Bar Association

diversity corner

An Interview with Hon. Joseph D. Johnson By Diana Stanley


s Etta Walker noted in the previous Diversity Corner, there is a gender and an ethnicity gap among our state judiciary. Kansas ranks 30th in race and ethnicity representativeness. Acknowledging that gap, the Diversity Corner is devoting a series of articles to highlighting the careers of minority judges. For the first interview, we hear from retired district court judge Joseph D. Johnson. Johnson was the first Black District Court Judge in Shawnee County and served from 2005 to 2018.

Tell us a bit about yourself

I’m from Dunnellon, Florida and I grew up in the segregated South. I graduated from high school in 1969 and migrated to North Carolina, where I attended a historically Black college, WinstonSalem State University. I received a double major in history and political science in 1973. From there, I moved to Kansas to attend law school. I ended up in Kansas because of the Ku Klux Klan. Back when I was in college, Ohio State University was part of a group of universities that were aggressively recruiting minority students for graduate schools. State was “adopted” by Ohio State. The school invited a group of us to visit their campus for tours and put us up in a hotel across from the campus. The morning that I was scheduled to meet my host to visit the law school, he called and pushed our time back. Being a country boy, I went down Hon. Joseph D. Johnson to the lobby early. I saw people gathering outside and went out to see what was happening. There were people in full Klan regalia on a march—the first and last Shortly before I graduated in December 1975, I was hired as time I’ve ever seen people dressed in the full Klan get-up. I the first Black public defender in the State of Kansas. remember looking around and realizing that I was only Black person on the street, so I backpedaled back into the hotel. How did that job come about? That was it for me—I was not going to Ohio State. The only It was the result of my advisor, the late Paul Wilson, who other law school that had extended me an invitation was the served as the Kansas Assistant Attorney General and argued University of Kansas. So, Kansas won by default and I am Brown v. Board of Education. I had a keen interest in criminal glad it did! law, but I also excelled in tax. The dean at the time, Martin

u | March/April 2021 19

diversity corner t Dickinson, was a nationally recognized tax lawyer. He had contacted a large Florida tax firm and they offered me a job. During the interview, the firm agreed to allow me to do a certain amount of pro bono criminal defense work. However, there was no mention of the pro bono criminal work in the employment contract that they sent me. I took it to Professor Wilson and talked it over. Wilson told me that I needed to call them and get them to put the contract in writing. So, I did, and they were insulted—talked a lot about their firm’s reputation etc., so I apologized and went back to Professor Wilson. He said, “If you learn nothing else in law school, learn this: if someone promises something to you and won’t put it in the signed contract, usually that means that they don’t intend to honor it.” So that was the end of that.

University of Kansas Class of 1976

It caused a bit of a stir with the dean and I think Professor Wilson felt responsible for me. He was on the Committee for the Indigent Defense Fund for the State of Kansas and he knew there was an opening at the Topeka office. He contacted the head of the office. The day he contacted them happened to be the last day that they were interviewing applicants for the job. I got this call from Professor Wilson to come to his office. As soon as I got there, he told me that I needed to hurry over to Topeka and interview for this job and I should take my resume with me. I jumped in the only suit that I had, a brown JC Penney suit, and found my way to Topeka. By the time I drove back to Lawrence, my then-wife told me that I had a call offering me the job and asking me to start Monday. Sure enough, I started Monday—wearing that same brown JC Penney suit. And that’s how I got started. Within six months, I had my first first-degree murder case. Ira Kirkendoll was first chair, but the client took a liking to me and asked me to handle the majority of the case. Over time, it became abundantly clear to me that the client had an immense distrust of the system based on color. He was a Black man and I was the only other Black face he saw. All the lawyers at our office were white, the judges were white, and the District Attorney offices were white. I think he had seen enough to be concerned about the impact of race. I stayed at the public defender’s office for two years before starting my own practice. 20 The Journal of the Kansas Bar Association

So, what made you switch to the bench?

Leaders in the African American community in Topeka. The first time they asked me, John Carlin was the governor, and his personal secretary was a Black woman, Pauline Barker. Pauline’s cousin was a friend of mine. He called and told me the governor’s office was interested in appointing a minority judge in Shawnee County. At that time, my first wife was sick, and I had two kids so I could not afford to take the pay cut. A couple of decades later, it came up again. A few folks, like Joe Douglas, the first Black fire chief, cornered me. By that point, my wife had passed away and my kids were grown. The Topeka Black community was up in arms because they didn’t feel like they got a fair shake in the court system. They felt this would go a long way toward easing their concerns. So, I gave it some thought. The legal profession is about more than making money. I saw the chance to do some good on another level.

What developments do you think people should be paying attention to in criminal justice? One problem that transcends the criminal justice system, but impacts it, is redistricting. In states where Republicans control the legislature, they carve up election districts with a higher population of minority voters. By carving out those districts, it diminishes minority voting power. That impacts the criminal justice system. Minority people are not stupid. They see what’s being done. And that’s what makes people paranoid about the legal system. As long as the courts allow that sort of thing to happen, why wouldn’t it allow mistreatment of minority people across the board?

It’s similar to how the courts responded to segregation for many years. I always tell people that one of the biggest hypocrites in America is the legal system. Segregation lasted as long as it did because of the courts. And that relates today to voting. If you diminish someone’s vote, you take away their confidence in the voting system. And it’s not long until they lose confidence in other systems, including the legal system. I saw that lack of confidence on the bench. People would say to me, “How is it that a person of color can be judged by a jury of folks that don’t look them?” And I would often explain that “a jury of your peers” does not mean “a jury of your race.” But that’s hard to sell to a person who doesn’t see anyone like them in the legal system. I pose this hypothetical to my colleagues, “How would you feel if you were charged with a crime and everyone who sat in judgment of you was Black? The judge, the jury, the police officers testifying against you? The prosecutors? How comfortable would you be that your constitutional rights were being protected?” Now, that being said, we know what the system is – you do your best to make it work. And that is part of why I put my hat in the ring.

Parting thoughts?

I don’t think it’s a healthy environment when you have a judiciary as homogenous as Kansas does. It needs to be addressed. For a while we did not have enough women on bench – we still don’t have enough, but it’s getting better. For the longest time, we didn’t have any female representation on the appellate level. Justice Kay McFarland, the first at the appellate level, wasn’t appointed until after I became a lawyer. Some people say you shouldn’t be appointed because of your gender or race. No – you should be appointed because of your qualifications and because of your characteristics, but gender or race should not preclude you either. Justice McFarland was appointed in 1977. You can’t tell me there were no qualified female attorneys prior to 1977. A solution to this problem is past due. u Diana Stanley is a 2020 graduate of the University of Kansas School of Law, where she was an Articles Editor for the Kansas Law Review. She is the Articles Chair of the KBA Diversity Committee and practices in Wichita.

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continuing legal education

Online Delivery of CLE Increases Accessibility


t’s hard to believe that a year has passed since COVID-19 sent us all home and required the KBA to shift CLE programming to a fully online model. While we can’t wait to see you all in person at another KBA CLE Conference, we have discovered the online delivery of Continuing Legal Education can increase accessibility and convenience for so many attorneys across the state, and even around the world.

As you may have noticed at the end of 2020, our KBA CLE team has grown, and we all stand ready to provide you with exceptional service while supporting your success for this year and beyond. Finally, if you have suggestions for KBA CLE programming or are interested in presenting a CLE program of your own for the KBA, please reach out to us at We would love to hear from you. u

We are gearing up for the next compliance deadline – June 30 – and we want you to know we’ve been working hard coordinating with KBA Section leaders, attorneys around the state, and various affiliate partners to offer you a wide variety of high-quality online CLE programs to meet your 2021 CLE needs. As a reminder, for the 2021 compliance deadline, all 12 of your required CLE credits in Kansas can be earned online, either through live online webinars or through on-demand programs. We’ve recently added dozens of hours of quality programming to our online library, and we encourage you to check back often for new offerings each month.

Your CLE Team:

Amanda Wright, Director

Haley Atwell, CLE Coordinator

Abbey Gilliland-King, Outreach & Programming Coor.

UPCOMING PROGRAMS TO WATCH FOR: • • • • • • • • • • • •

April 2 – KBA Criminal Justice CLE April 16 – Appellate Section Virtual CLE Conference April 27 – Employment Law Virtual CLE Conference with Johnson County Bar Association April 29 & April 30 – Spring 2021 Bankruptcy CLE Webinar Conference May 5, 12, and 19 – “Handle with Care” Criminal Law Series May 6 – Juvenile Law Series with Johnson County Bar Association May 14 – Solo & Small Firm Series May 20 & 21 – Intellectual Property Summit June 3 – Brown Bag Ethics 2021 June 7 – 2021 Legislative & Caselaw Institute Debut June 10 & 11 – KBA Mid-Year Meeting, “Supporting Your Success” Tuesdays in June – Stuart Techier Ethics programs

Visit for the most up-to-date information about these and many more CLE programs. | March/April 2021 23

industrial hemp regulations

Industrial Hemp By Kenneth Titus and Stephanie Murray, Kansas Department of Agriculture

Article Addendum USDA addressed some of the concerns raised in this article in the timeframe between the article’s completion and its publication. USDA’s final rule on commercial industrial hemp production (86 FR 5596 and 7 CFR 990) was published on January 15, 2021. While the final rule still requires all testing of industrial hemp to be done in a DEA-certified laboratory, it does address some of the other concerns that were raised by KDA and other state departments of agriculture following publication of the interim final rule. Most notably, the final rule allows hemp to be sampled and tested up to 30 days before it is harvested and allows hemp with a THC concentration greater than 0.3 percent to enter commerce after it is remediated into a lawful product. The final rule is currently under review by the new Presidential administration and will take effect on March 22, 2021, if it is not revised. Amendments aimed at better aligning the relevant KDA regulations with the final rule will also be forthcoming in the next year.

24 The Journal of the Kansas Bar Association




emp occupies a unique place in the landscape of global agriculture as one of the earliest cultivated and most widely grown crops in human history and, more recently, as one of the most maligned. Hemp was widely grown in the United States well into the Nineteenth Century,1 but production had declined sharply by the late 1800’s, and the final blow to the industry occurred when hemp was included in the Controlled Substances Act of 1970, thereby criminalizing cultivation and possession of the crop.2 Calls for reform have persisted ever since, and the 2014 and 2018 Farm Bills have recently opened the door for re-establishing commercial hemp production in the United States.3 However, these laws co-exist uncomfortably at times with existing federal and state criminal laws, and the resulting legal landscape is one that must be navigated with care. This article briefly summarizes the history of hemp production in the United States and explores recently enacted federal and state statutes and regulatory schemes related to the crop, highlighting elements of Kansas law that practitioners should be aware of as they guide clients through this evolving area.

industrial hemp regulations


History of Hemp Production in the United States

Hemp’s role as a staple crop in North America pre-dates European settlement on the continent. Native Americans had long grown the crop to produce, among other things, paper, thread, clothing, and food.4 English colonists at Jamestown grew hemp in the early-1600s, and some early colonial laws even required farmers to produce the crop.5 Hemp production in New England continued throughout the 1700s, and by the mid-1800s hemp had become a cornerstone American agricultural commodity.6 Following the Civil War, however, a rise in imports and manufacturing saw American hemp production declining. This trend continued into the early Twentieth Century and was exacerbated by public apprehension regarding cannabis, the family of plants that includes marijuana as well as hemp.7 While hemp and marijuana are visually indistinguishable, hemp does not contain enough of the psychoactive compound tetrahydrocannabinol (“THC”) found in marijuana to produce a “high.”8 Nonetheless, the similarities between hemp and marijuana have long caused a stigma surrounding hemp. The public perception of cannabis as dangerous to American morality and society fueled a series of laws that would eventually end American hemp production and lay the groundwork for the multilayered legal framework that present-day producers, regulators, and attorneys must navigate as the crop begins to make a comeback. One of the first notable laws of this kind was the 1937 Marijuana Tax Act, which taxed the sale of all cannabis, thus discouraging hemp production.9 Hemp saw a brief resurgence during World War II, when the United States Department of Agriculture (“USDA”) initiated a “Hemp for Victory” program that resulted in more than 150,000 acres of hemp in production.10 However, that wartime revival proved to be short-lived, and America’s last commercial hemp fields (until recently) were planted in 1957.11 The 1970 Controlled Substances Act made all cannabis a Schedule I illegal drug.12 Thus, hemp was treated the same as drugs like cocaine and heroin, and its production or possession was illegal under federal law.13 Advocates have long pushed to reverse this, citing hemp’s versatility and resulting economic potential, as well as what many consider the flawed logic of treating cannabis as a controlled substance in the first place. The durable stalk of hemp plants can be harvested for fiber and used to manufacture rope, paper, cosmetics, and many kinds of building materials.14 The flowers, seeds, and oil of the plant are purported to offer wide-ranging health benefits and provide relief from various medical conditions.15 Proponents of hemp production thus argue that misguided federal policy has for decades outlawed a harmless crop at the cost of significant economic opportunity and improved quality of life for many people.

Despite these arguments supporting the re-establishment of a commercial hemp market in America, the state of the law regarding hemp is quite complex, rapidly developing, and varies significantly among states. Additionally, hemp production is not immune to the difficulties faced by all farmers: unpredictable weather and equipment issues, frequent labor shortages, and market volatility. Indeed, hemp is in many cases more susceptible to these pitfalls than traditional crops, as most present-day producers lack extensive knowledge of the crop and standard equipment is not always effective for harvesting or handling hemp. Broader economic consequences must be considered as well. For example, an emerging trend already indicates a likelihood that an influx of new hemp producers coupled with a lack of sophisticated processing systems will flood the market with raw harvested industrial hemp for which there are no buyers.16 All of these factors indicate that, though hemp has promising potential, the establishment of stable markets poses significant challenges.


Establishment of Industrial Hemp Research Programs

Proponents of hemp production finally made some progress in 2014, when Congress passed a new Farm Bill, the Agriculture Act of 2014, which exempted hemp produced under a state-regulated research program from the Controlled Substances Act.17 This was a significant step forward for American hemp production, opening the door for producers and state agriculture officials to begin learning more about a crop that had been absent from American agriculture and economics for decades. However, hemp production under the 2014 Farm Bill was not without complexities and limitations that caused challenges for regulators and frustrations among stakeholders. A. 2014 Farm Bill and Alternative Crop Research Act The 2014 Farm Bill allowed the production of hemp – defined as “the plant Cannabis sativa L. and any part of such plant, whether growing or not,” with a delta-9 THC concentration of 0.3% or less18 – for research purposes. Specifically, it provided that “notwithstanding the Controlled Substances Act…or any other Federal law, an institution of higher education…or a State department of agriculture may grow or cultivate industrial hemp if (1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and (2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.”19 In light of these rather open-ended federal requirements for a pilot program, some states implemented programs

u | March/April 2021 25

industrial hemp regulations t soon after the Farm Bill’s passage and took quite a broad approach to allowing hemp cultivation. For example, Colorado, which had legalized both medicinal and recreational marijuana by state law prior to the passage of the 2014 Farm Bill, implemented a program that essentially allowed for the commercial production and sale of hemp within the state.20 Kansas was slower to implement a hemp research program and ultimately took a more limited approach.21 The Alternative Crop Research Act, enacted in 2018, provided that “[t]he [Kansas Department of Agriculture], alone or in coordination with a state educational institution, may cultivate industrial hemp grown from certified seed and promote the research and development of industrial hemp, in accordance with 7 U.S.C. § 5940….”22 Importantly, the Alternative Crop Research Act used the 2014 Farm Bill’s definition for “industrial hemp.” Thus, any crop produced pursuant to the act that had a THC concentration greater than 0.3 percent was not actually legally considered hemp, but illegal marijuana. The Alternative Crop Research Act directed the Kansas Department of Agriculture (“KDA”) to promulgate rules and regulations to carry out the law. In the spring of 2018, KDA began working to implement a hemp research program, developing regulations with the assistance of a statutorily required advisory board and representatives from states that had already implemented research programs.23 Initial discussions among legislators centered on whether the Alternative Crop Research Act should limit eligibility to participate in hemp production to KDA itself and the specific state educational institutions identified in the statute or should participation be made more broadly available to private producers. Ultimately, the interpretation adopted was that private individuals could produce, distribute, or process industrial hemp for research purposes as long as they were licensed and regulated by KDA. While this approach was more limited than the one taken by Colorado, it was broader than the one adopted by contiguous states where medicinal and recreational marijuana remained illegal at the time. For example, Nebraska and Oklahoma initially allowed industrial hemp cultivation only by their state departments of agriculture and specified educational institutions.24 B. Notable KDA Industrial Hemp Research Program Requirements Because Kansas took the approach of licensing individuals to produce hemp under its research program while marijuana remained illegal at the state level, the rules and regulations KDA adopted were by necessity quite detailed when compared to those of contiguous states. KDA needed a regulatory scheme that would allow it to ensure 26 The Journal of the Kansas Bar Association

that numerous individual growers, distributors, and processors operated in compliance with Kansas law, which remained very strict in this area. KDA’s industrial hemp research regulations were formally adopted in February 2019 and were in place for the 2019 growing season. The regulations required each individual seeking licensure to submit an application to KDA detailing the applicant’s proposed research and identifying the locations, individuals, vehicles, and equipment that would be involved in the operation.25 Each application was reviewed by the advisory board, and a license could only be issued after the board recommended approval of the application and research proposal.26 The research regulations contained a few notable gatekeeping requirements that limited eligibility for participation in KDA’s research program. First, only individuals were permitted to hold licenses to produce, distribute, or process hemp for research purposes. KDA did not allow corporations or other entities to hold licenses in their own names because of concern regarding potential interplay with the Controlled Substances Act – a corporation’s ability to shield itself from criminal liability would prove problematic in the event hemp plants grown by a business entity license-holder produced excessive THC and thus became illegal marijuana over the course of maturation. KDA’s research regulations also required everyone involved with a hemp research operation to hold a license under the supervision of a primary licensee and to be fingerprinted and undergo a state and federal criminal history record check administered by the Kansas Bureau of Investigation (“KBI”).27 Finally, an applicant who had committed any of a number of specified felonies in the ten years preceding their application for licensure was disqualified from participation in the research program.28 Although fingerprinting and background check requirements in particular caused a fair amount of discontent among the public, KDA was required to enforce them, as those provisions were established by the legislature in the Alternative Crop Research Act.29 The research regulations also contained fairly extensive requirements for planting and harvesting hemp, the most important being the previously mentioned requirement that lawful hemp plants contain no more than 0.3 percent THC.30 The additional requirement that hemp be grown from certified seed under the research program meant that licensees were only permitted to plant certified hemp seed or seedling plants that were either obtained from a distributor licensed in the Kansas research program or were legally imported into Kansas.31 Producers could also only plant officially approved hemp varieties.32 Essentially, licensees were required to begin their operation using seeds or plants whose genetics had shown a reasonable

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likelihood that they would produce lawful hemp and not marijuana. Licensees were also required to submit planting, pre-harvest, and production reports to KDA for each research area where plants were growing.33

created significant uncertainty for both hemp producers and law enforcement, as all parties attempted to navigate a patchwork of state regulatory schemes under the 2014 Farm Bill.43

Perhaps the most significant provision of the research regulations from a producer standpoint was the requirement that a sample of plants from each research area be collected and tested for THC concentration prior to the licensee being allowed to harvest the plants.34 If the initial required sampling and testing showed the sampled plants to have a THC concentration greater than the permissible 0.3 percent, the licensee was issued a failing report of analysis and then had a period of time to either destroy the plants or request that an additional sample be collected and tested.35 If a subsequent sample was also shown to have a THC concentration greater than 0.3 percent, the licensee was issued a second failing report of analysis and was then required to destroy all hemp plants in the sampled research area within seven days.36 Since hemp with a THC concentration greater than 0.3 percent was, and is still, defined as marijuana, KDA reserved the right to refer any violation in this regard to local law enforcement and, at the recommendation of the advisory board, determined that any sample containing a THC concentration of 2.0 percent or greater would result in mandatory referral to law enforcement.37 Licensees were only allowed to harvest hemp plants after testing showed that the plants’ THC concentration did not exceed 0.3 percent and KDA issued the licensee a passing report of analysis.38

Other notable aspects of the research regulations included provisions that allowed licensees to voluntarily withdraw from the program prior to harvesting hemp plants and allowed for voluntary partial destruction of a hemp crop.44 A few 2019 licensees availed themselves of the voluntary withdrawal provisions, usually either because they were unable to procure suitable hemp seed in time for planting or because the unusually wet year made planting impractical. Overall, though, most 2019 research program licensees harvested hemp crops successfully.

Once harvest was completed under the research program, hemp could be transferred to a licensed research distributor or a licensed research processor, who were also subject to specific requirements under the research program regulations. Most notably, holders of each of these licenses were required to maintain a harvest certificate or a bill of lading verifying that all hemp in their possession was lawful hemp.39 However, only growing plants and raw harvested hemp were regulated by KDA under the research program – the research regulations did not apply to processed end-products derived from hemp. While the research regulations did not allow the commercial sale of hemp to the general public, they did allow sales to other Kansas licensees and permitted out-of-state sales to licensees of another state’s research program.40 The sale of processed endproducts containing CBD was likewise permitted under the research program as long as the product contained zero percent THC.41 Finally, the research regulations provided that any sale or transfer of hemp under the research program was required to be lawful in the state in which the transaction was undertaken.42 These provisions

C. Industrial Hemp Research Program Results KDA issued a total of 254 research licenses for the 2019 growing season, including 190 grower licenses, 20 distributor licenses, 35 processor licenses, and 9 state educational institution licenses. Twenty-three research grower licensees withdrew from the program voluntarily before completing harvest, and KDA received planting data from 166 research grower licensees. Approximately


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industrial hemp regulations t 2,782 acres of hemp were planted in 59 Kansas counties in 2019, with approximately 1,831 acres harvested in 52 counties. Only about 6% of the 2019 Kansas hemp crop produced plants with a THC concentration that exceeded the acceptable 0.3 percent threshold. A likely reason for this high pass-rate is that heavy rains in the spring of 2019 shortened the growing season, which did not allow plants to mature to the extent they normally would have. Higher fail rates can thus be expected in a more typical growing season. In September 2020, the Kansas Legislative Division of Post Audit published the findings of an audit it conducted on Kansas’s 2019 hemp research program in consultation with Dr. Tyler Mark, a University of Kentucky agricultural economist.45 The audit found that hemp grown under the research program in 2019 did yield positive overall returns for producers, but that those returns were limited somewhat – both floral and grain-producing varieties of hemp specifically produced negative returns in 2019.46 These limitations were likely due to producers lacking knowledge regarding best practices for hemp production.47 The audit report concluded that hemp has the potential to be very profitable for Kansas producers long-term, but it also noted that this conclusion assumed production by experienced growers and that there is still much to learn about hemp production in Kansas.48 For example, the audit did not evaluate whether Kansas soil conditions, including pH and nitrogen levels, were suitable for growing hemp and likewise did not assess which strains of hemp might be most suited to the various regions of Kansas.49 Kansas State University conducted more extensive work on the agronomic aspects of hemp production as a research program licensee in 2019, finding several additional aspects of production that will need to be addressed to strengthen the hemp industry long-term.50 Some of the setbacks and limitations that Kansas State experienced included weak germplasm, insect and pest issues, poor seedling vigor, seed shattering, premature seed germination, and inconsistent stands.51 Kansas State also found its hemp production restricted by research program regulations that did not allow it to grow or evaluate new germplasm (wild collected or noncertified seed).52 Kansas State additionally advocated for the permissible THC concentration to be raised, citing work by research institutions in states with less restrictive research programs that has found effective CBD production can be achieved most effectively by selectively breeding plants with a higher THC content.53 In light of these limitations and other issues, it did not take long for stakeholders and legislators to seek 28 The Journal of the Kansas Bar Association

changes to the Alternative Crop Research Act and the regulations promulgated thereunder. Coinciding with the development of a commercial program during the 2019 legislative session, efforts were also underway to refine the existing research program, which had not yet seen the first legal hemp seed planted, to better fit the experiences of the state’s potential producers. These efforts ultimately resulted in the passage of Senate Substitute for HB 2167, which eliminated the requirement that hemp be grown from certified seed (certified seed had proven largely unavailable for cannabinoid or floral varieties of hemp) and loosened the requirements for dealing with noncompliant plants by allowing “effective disposal” in addition to or in place of “destruction.” This addition ensured that producers would be able to make some commercial use of a noncompliant crop, to the extent USDA may allow doing so in the future, as long as the crop can be made to not resemble a controlled substance.54 Overall, the 2019 research program provided Kansas hemp producers with significant knowledge in a short time but also revealed how much remains to be learned about this crop.


Establishment of Commercial Hemp Programs

While the research programs authorized by the 2014 Farm Bill represented a huge step forward for American hemp production, producers and regulators alike were frustrated by some of the research programs’ limitations and hoped that impending changes to federal law would soon allow more flexibility in hemp production. The Agricultural Improvement Act of 201855, commonly known as the 2018 Farm Bill, served as a watershed moment for hemp producers in the United States in this regard, as it allowed producers to shed at least some of the limitations of a research program and provided a degree of clarity for regulators. The 2018 Farm Bill also ultimately opened up hemp production to most of the country, regardless of whether a state or tribal government choose to accept direct regulatory responsibility.56 This created tremendous potential for growth in the hemp industry, based largely on how USDA chose to implement a commercial program. Some requirements imposed by USDA have presented unique challenges, and many stakeholders would have liked the law to go further in lessening restrictions on production. However, the implementation of regulated commercial programs has still advanced American hemp production toward reaching its potential. A. 2018 Farm Bill – USDA’s Authority and Implementation Perhaps the most significant step in establishing a commercial hemp industry was the removal of hemp from the federal list of controlled substances. As discussed above, the 2014 Farm Bill did not officially remove hemp

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from the definition of marijuana within the Controlled Substances Act.57 Instead, it merely exempted hemp produced pursuant to a research program without actually changing the definition of marijuana under federal law.58 In contrast, the 2018 Farm Bill explicitly removed hemp from the definition of marijuana by stating that “marihuana” “does not include … hemp as defined in Section 297A of the Agricultural Marketing Act of 1946 … [or] tetrahydrocannabinols in hemp (as defined in Section 297A of the Agricultural Marketing Act of 1946).”59 This was an important step in legitimizing hemp as something different from intoxicating marijuana, despite the two belonging to the same plant family. Along with removing this persistent barrier to successful commercial production, the 2018 Farm Bill also established that it was lawful to move hemp in interstate commerce, freeing producers from a patchwork of regulatory schemes under state research programs that had limited or outright prohibited interstate transport.60 In addition to clarifying the legality of hemp production and transport, the 2018 Farm Bill outlined how state and tribal commercial hemp programs would be structured. The 2018 Farm Bill authorized states and tribes to allow

the commercial production of industrial hemp either by securing USDA approval of a plan for a state or triberegulated program or by allowing federal regulation of industrial hemp pursuant to uniform rules promulgated by USDA.61 The 2018 Farm Bill further provided that each state department of agriculture and each tribe seeking a state or tribe-regulated commercial hemp program was required to submit a plan to USDA that included: • A practice to maintain relevant information regarding land where hemp is grown in the state or within tribal lands; • Sampling and testing procedures for evaluating the THC concentration of hemp; • A procedure for effective disposal of plants grown in violation of the law (and the products derived from such plants); • A procedure to ensure compliance with enforcement requirements; and • A procedure for conducting annual inspections of, at a minimum, a random sample of the state or tribe’s hemp producers.62 u | March/April 2021 29

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Moreover, state plans were allowed to include practices or procedures more stringent than those set forth in the Farm Bill, as long as such practices and procedures did not directly conflict with federal law.63 The 2018 Farm Bill also dictated how violations of state or tribal plans were to be handled. Perhaps to help assure the public that proper oversight is in place in light of the stigma historically associated with hemp, the 2018 Farm Bill required a series of steps referred to as a corrective action plan whenever a producer negligently violates the requirements of a state or tribal plan (e.g., a producer grows hemp that contains too much THC, but not so much THC that it appears there was an intent to grow marijuana).64 The law also provided that a producer who commits three negligent violations within five years shall be removed from a state or tribal program.65 Further, in cases where a producer’s “culpable mental state” is determined to have been greater than negligence (e.g., there is evidence the producer intended to grow illegal marijuana or should have known his crop would become illegal marijuana), the matter is to be referred to the state’s attorney general and to appropriate state, local, or tribal law enforcement officials.66 Finally, similar to the 2014 research provisions, anyone convicted under state or federal law of a felony relating to a controlled substance is prohibited from participation in a commercial hemp program for ten years from the date of the conviction, except for convictions resulting from a person lawfully growing hemp under a federally authorized research program.67 30 The Journal of the Kansas Bar Association

In addition to providing requirements for state and tribal commercial hemp plans, the 2018 Farm Bill gave USDA authority to directly regulate hemp growers in any state and on any tribal land where a federally approved plan was not adopted.68 In those cases (except where the state or tribe had outright prohibited hemp production), producers were to be regulated under substantially the same requirements for state and tribal plans.69 The 2018 Farm Bill further clarified how hemp production would fit into the larger federal regulatory regime by including a statement that the Federal Food, Drug, and Cosmetic Act70 would not be impacted and a requirement that all authority for state or tribe-regulated research programs be repealed one year after the enactment of commercial hemp regulations by USDA.71 Thus, barring an explicit state or tribal prohibition on hemp production, the hemp market is now open in nearly every state and to every tribe, either through a program regulated by each state or tribal government and approved by USDA or through a program administered directly by the federal government. B. Adoption of USDA Regulations and the Kansas Program Once Congress enacted guidelines for commercial hemp production in the 2018 Farm Bill, the next step was for USDA to adopt regulations detailing requirements for state and tribal plans and for federally regulated producers. To that end, the 2018 Farm Bill was enacted in December 2018, but USDA did not publish its Interim Final Rule (“IFR”) outlining such requirements until October 2019. In the meantime, KDA and most other state and tribal regulators hoped (and assumed) that the IFR would establish rules for commercial hemp production that would mirror existing commercial-type operations in other states and would be considerably less stringent than the research program requirements adopted in Kansas. Most states were also eager to begin the adoption process for their commercial hemp programs, and, without any USDA direction, Kentucky submitted their existing research program requirements for approval as their commercial plan under the 2018 Farm Bill on December 20, 2018, almost before the ink on the 2018 Farm Bill was

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dry.72 Although not as ambitious as Kentucky, KDA and many other tribes and state departments of agriculture had substantially drafted their commercial hemp program plans based on anticipated USDA requirements in the timeframe between the passage of the 2018 Farm Bill and the publication of the IFR. For the most part, these drafts did not end up aligning with the federal requirements eventually adopted, as USDA provided very little advance guidance as to the contents of the IFR it was developing and surprised state and tribal regulators by ultimately implementing an extremely strict interpretation of the 2018 Farm Bill. Kansas certainly faced difficulty in this regard, as KDA’s existing drafts of commercial hemp regulations, which would comprise the commercial hemp plan submitted to USDA, proved to be inadequate once the IFR was published. As a slow adopter of a hemp research program, Kansas had not even seen its first hemp growing season under the Alternative Crop Research Act73 when Congress authorized commercial hemp production with the 2018 Farm Bill. Thus, the decision was made to seek approval from the Kansas legislature to develop a commercial hemp program, even as KDA was still attempting to finalize a comprehensive set of research regulations. Knowing it was likely to be months before USDA provided the states with any practical guidance, KDA sought to enact state level requirements that met the minimum requirements set forth in the 2018 Farm Bill, while still allowing KDA necessary discretion in the adoption of rules and regulations. Along with the general legislative guidance that commercial hemp production should be conducted in the least restrictive manner allowed by federal law, the legislature also required KDA to develop a plan that met all the federal standards outlined above.74 The Alternative Crop Research Act was thus renamed the Commercial Industrial Hemp Act, and KDA began drafting regulations based on these legislative instructions, intending to develop a plan that substantially reduced the regulatory burden imposed on producers by the research regulations. Specifically, KDA initially drafted its commercial plan to limit the number of people subject to criminal history record checks and lessen the research program’s sampling and testing requirements so that only a representative sample of all crops had to be sampled and tested prior to harvest, which appeared to align with the text of the 2018 Farm Bill. However, these draft provisions ultimately had to be revised, as USDA chose to adopt some of the strictest requirements possible based on its interpretation of the 2018 Farm Bill. The IFR provided that, in order to be

approved by USDA, every state commercial hemp plan had to include, at a minimum, the following provisions: • A procedure for accurate and effective sampling of all hemp produced no more than 15 days prior to the anticipated harvest; • A requirement that producers shall not harvest the crop prior to samples being taken; • A policy that sampling be based on total THC concentration (not just the concentration of delta-9 THC, the cannabinoid most associated with the “high” of marijuana); • A policy that testing must be conducted by a Drug Enforcement Administration (“DEA”)-registered laboratory; • A requirement that effective disposal of noncompliant plants be conducted in accordance with DEA regulations; • A procedure for annual inspections of a random sample of producers (in addition to pre-harvest sampling of all crops); and • Requirements that extensive information about hemp production and acres planted be shared with USDA’s Agricultural Marketing Service (“AMS”) and Farm Service Agency (“FSA”).75 While it remains unclear why USDA took such a hardline position on the requirements of commercial hemp plans, Kansas was ultimately in a better position than most states to adopt an approvable plan in a short timeframe. Due to the strict requirements of the Kansas research program, KDA’s existing research regulations could be adapted to meet most of the new federal requirements with only some modest amendments. Other states were faced with a more difficult path, as states with larger and more established research programs typically had not required pre-harvest sampling and testing of all hemp, could not realistically sample and test such a large volume of plants within the 15-day pre-harvest period required by the IFR, and had not been measuring compliance in terms of total THC.76 One struggle Kansas did share with almost all other states was meeting the IFR’s requirement that testing and destruction of commercial hemp comply with the Controlled Substances Act and DEA requirements. The primary concerns for Kansas in this regard was the requirement that all testing of commercial hemp plants be conducted by a DEA-certified laboratory and the requirement that effective disposal of non-compliant plants take place in accordance with DEA regulations. During the research program KDA had conducted hemp testing at the KDA Laboratory, which was not DEAcertified at the time of the IFR’s publication. This was not

u | March/April 2021 31

industrial hemp regulations t considered an insurmountable barrier to an approvable commercial plan, however, as KDA felt confident it had the resources for the laboratory to obtain certification without too much difficulty.77 The larger concern was the requirement that noncompliant hemp be destroyed in accordance with DEA regulations. This meant that a non-compliant crop had to be harvested and destroyed by either law enforcement officers or a DEA-registered reverse distributor.78 A reverse distributor is authorized by the DEA to acquire controlled substances from another registered reverse distributor or from law enforcement for the purpose of either returning the controlled substance to its manufacturer or destroying it.79 The first problem with this requirement was that DEA reverse distributors are not authorized to deal with Schedule 1 controlled substances like marijuana (or, more accurately, hemp-turned-marijuana). The second problem—obvious to anyone familiar with local law enforcement—was that the cost and resources that might be required, based on the number and size of non-compliant fields, could be overly burdensome and prevent law enforcement from using their resources for more important tasks, such as those that actually involved criminal intent or the protection of the public. KDA expressed these concerns, along with concerns about the sampling and testing timeframe, reporting requirements, and a lack of clarity regarding the role of research institutions once commercial hemp was legal, in written comments regarding the IFR that were submitted to USDA.80 As KDA, other state agriculture departments, and various stakeholders engaged with USDA regarding the impracticality of the IFR, Kansas saw its first plantings of hemp take place as the initial research program growing season got underway. Thus, KDA and Kansas hemp producers were learning about hemp production on a large scale for the first time in decades, while state regulators were simultaneously working to ensure the state’s commercial hemp program would be compliant with USDA’s IFR. As noted above, obtaining DEA certification for the KDA Laboratory could be handled by KDA administratively with a small amount of funding. However, finding a way to effectively (and efficiently) dispose of non-compliant hemp was a larger problem. Since the option to have non-compliant plants disposed of by a DEA-registered reverse distributor was essentially invalid at its inception, the responsibility to destroy noncompliant hemp fell entirely to law enforcement. KDA explored several options to deal with this administrative burden, including utilizing the law enforcement officers authorized to be employed by the Animal Health Commissioner (an employee of KDA’s 32 The Journal of the Kansas Bar Association

Division of Animal Health) to investigate livestock theft.81 Ultimately, KDA, in partnership with law enforcement stakeholders, developed proposed legislation that placed local law enforcement in a supervisory role over KDA employees engaged in the destruction of non-compliant hemp and required extensive coordination between the two entities.82 If passed, this bill would have allowed KDA to manage the process of destroying non-compliant plants but also required that local law enforcement be kept apprised of all destruction and allowed to be involved if a violation occurred that included conduct more serious than negligence. Unfortunately, the 2020 legislative session was shortened by COVID-19, meaning that this destruction bill, which had passed the Senate, did not make it to its scheduled committee hearing in the House. USDA did help mitigate any serious consequences of the bill’s failure, however, when it announced on February 27, 2020, in response to comments received from state regulators regarding the IFR, that it would not enforce the DEA laboratory certification or destruction requirements while the IFR is in place.83 Since it is unknown whether USDA will ultimately change its position on these issues, it is likely that the same language proposed during the 2020 legislative session will be introduced in the 2021 session, so that law enforcement will not be faced with having to absorb the entire cost and responsibility for destroying non-compliant hemp. Hopefully, USDA will make an informed decision on these issues, as it recently reopened the IFR’s comment period for an additional 30 days to deal with the most contentious provisions, including required sampling and testing, disposal of non-compliant plants, negligent violations, the 15-day harvest window, research projects, DEA laboratory registration, and several other topics.84 These remaining issues notwithstanding, USDA approved Kansas’ commercial hemp plan on April 16, 2020, though the regulations implementing the plan at the state level were not effective until January 8, 2021. Consequently, the 2020 growing season was ultimately regulated under substantially the same requirements as the 2019 season. Kansas saw an increase in licenses issued and in hemp acreage planted and harvested in 2020 compared to 2019, with KDA issuing 207 grower licenses, 20 distributor licenses, 23 processor licenses, and 7 state educational institution licenses. KDA projections as of November 2020 indicated the 2020 growing season would result in the harvest of 789 acres of hemp in 45 Kansas counties. Reno, Miami, and Haskell Counties saw the greatest number of grower licenses issued for growing years 2019 and 2020 combined, while Reno and Johnson County operations were issued the greatest number of both distributor and

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processor licenses. Kansas State University has so far been the only state educational institution licensee, with most of its production taking place at its main campus in Riley County. Along with increased production numbers, Kansas also saw a greater percentage of hemp crops produce an impermissible level of THC in 2020 compared to 2019, likely because less rain resulted in a longer growing season and correspondingly more time for THC levels to rise as plants matured. Producers in 2020 also faced difficulties caused by drought or flooding, depending on their area, poor seed viability, and poor plant emergence that resulted in weed takeover, again illustrating that advancements still need to be made for hemp production to be successful long-term. In the 2021 growing season and beyond, hemp production in Kansas will be regulated by KDA’s commercial hemp regulations and the corresponding USDA-approved commercial hemp plan. In the end, Kansas’ commercial regulations will result in less state regulation of the hemp industry at the grower level, but greater involvement by the federal government. For example, licenses will only be issued to a primary licensee for each hemp operation (and only primary licensees, not their employees, will have to undergo the required background check).85 This should provide relief compared to the research program, which required all employees and landowners involved in an operation to be licensed and background checked.86 Further, distributor and administrative licenses will no longer be needed, as KDA will only regulate growers under the commercial program. Additionally, applicants will not have to submit research proposals in order to be issued a license. One of the more stringent requirements that remains in place under the commercial program is that licenses will still only be issued to individuals and not to other common business entities such as corporations.87 Since the potential remains for non-compliant hemp to become a controlled substance, limiting licenses to individuals remains appropriate at the present time. Further, while background check and licensure requirements will now apply to fewer people working on each operation, each individual issued a licensee is now responsible for all aspects of their hemp crop and for the hemp production-related actions of all individuals involved with their operation or under their supervision or control.88 Finally, with hemp distributor licenses no longer a part of KDA’s regulatory framework under the commercial program and the 2018 Farm Bill providing protection for the movement of hemp and hemp products in interstate commerce, the legislature adopted a method to ensure that hemp can be traced back to the licensed


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u | March/April 2021 33

industrial hemp regulations t grower who produced it, requiring documentation be supplied to “prove to any law enforcement officer that [unprocessed industrial hemp is] lawfully grown….”89 KDA implemented this legislative mandate with K.A.R. 4-34-26, which requires that each time unprocessed hemp is transferred, beginning with the first sale by the grower, it be accompanied by a signed bill of lading or similar document that verifies it is lawfully produced hemp.90 Producers of hemp grown in another state and transported to or through Kansas would also be wise to include similar documentation with their shipments. The documentation contemplated by K.A.R. 4-34-26 does not necessarily have to take any specific form; its overall purpose should simply be to allow hemp to be traced back to its place of origin. Ultimately, Kansas’ commercial hemp plan is less restrictive in many ways than its predecessor research plan – no research proposal is required, only the individual primarily responsible for the hemp crop is required to be licensed and undergo a background check, and only growers need a KDA-issued license.91 On the other hand, federal law requires much more extensive reporting to federal regulators, and it is unclear what impact USDA’s strict requirements will have on the state’s ability to maintain and regulate commercial hemp production in the future. C. Regulation of Hemp Processors and Processed End-Products In Kansas, the regulation of hemp growers and processors was connected from the inception of the research program, but this was not always the case in other states. The 2014 Farm Bill was silent on hemp processing—it allowed the establishment of research programs to study the “growth or cultivation” of hemp.92 As a result, the regulation of processors and end-products was largely left up to the states. Many states either did not enact any requirements for hemp processing or placed processing under the jurisdiction of entities that had already been established to regulate the marijuana industry.93 However, the Alternative Crop Research Act specifically required KDA to license individuals involved in “processing.”94 The Kansas research program regulations established more specific mandates, requiring hemp processors to keep records so that KDA and law enforcement would be aware of where hemp was being processed, including records showing where hemp was obtained and verifying that it was lawfully grown.95 The 2018 Farm Bill was similarly limited to the cultivation of hemp. It did not expressly cover the regulation of processors under a commercial hemp program, and, ultimately, neither did USDA’s IFR. Since the legislation 34 The Journal of the Kansas Bar Association

authorizing Kansas’s commercial program was modeled after the little that was known about the impending federal requirements at the time it was drafted, processors were separated from the commercial growing program in K.S.A. 2-3907, and requirements for commercial processors were laid out as a separate statute, K.S.A. 2-3908. Senate Sub. For House Bill 2167 (2019) also set forth more detailed requirements for hemp processors and hemp products. Crafting these requirements required careful consideration of many factors, including the constraints of criminal law and the potential dangers posed by hemp processing activities. Hemp processing can result in by-products with a high THC concentration, which, in addition to being a controlled substance, are created by processing systems that can also be highly explosive, creating an obvious public health risk. Due to these concerns, law enforcement groups were the primary proponent for Kansas requiring strict regulation of hemp processors. At the request of these groups, the legislature enacted an outright ban on hemp cigarettes, cigars, chew, tea, and liquids, solids, or gases that might be used in vaporizing devices.96 At present, bans on such products appear to be allowed, as an injunction prohibiting the enforcement of an Indiana law banning hemp products, initially granted by the United States District Court for the Southern District of Indiana, was overturned by the Seventh Circuit Court of Appeals, which narrowed the issue to the Indiana law’s impact on interstate commerce.97 Additionally, hemp buds and ground floral and leaf material may only be sold to and handled by licensed processors.98 Kansas statute further provides that all requirements pertaining to the handling and disposal of solid and hazardous waste are applicable to hemp processing.99 It also requires that any hemp by-product with a THC concentration high enough to make it a controlled substance be rendered “unusable and unrecognizable” so that it does not have the appearance of a controlled substance.100 These provisions carry criminal penalties: violations will result in a class A nonperson misdemeanor for a first conviction and a severity level 9 nonperson felony for a second or subsequent conviction.101 Initially, the Commercial Industrial Hemp Act proposed that KDA take responsibility for regulating hemp processors when criminal enforcement was not required, but neither KDA nor law enforcement felt they had the resources to devote to full regulation of processors. This led to the legislative creation of a hemp processor registry that would be managed by KDA.102 Registered hemp processors would be required to meet minimum record keeping requirements and ensure that all employees dealing with hemp waste and by-products underwent criminal history record checks similar to those required

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meantime, the State Fire Marshall’s office is developing hemp processor regulations, which will further define the specifics of the law in this area. Other agencies will also retain jurisdiction for various aspects of hemp processing, as the primary responsibility for the regulation of waste disposal will fall to the Kansas Department of Health and Environment, and law enforcement will assume primary enforcement responsibility if waste material is concentrated with THC to the extent it could be a controlled substance. The regulation of hemp processors has required collaboration among many different government actors as they attempted to balance competing interests and navigate an evolving area of the law. Resolving the remaining issues in this area will be vital to establishing a commercial hemp industry in Kansas, as having an established processing sector will stabilize hemp markets going forward by ensuring producers have buyers for their crops.

Ultimately, Kansas’ commercial hemp plan is less restrictive in many ways than its predecessor research plan—no research proposal is required, only the individual primarily responsible for the hemp crop is required to be licensed and undergo a background check, and only growers need a KDA-issued license.91

While Kansas’s commercial program has provided a framework for growth in the hemp industry and was a significant step forward from the research program, many questions remain unanswered. USDA must still refine its rules to strike a reasonable balance between fostering economic growth and restricting the public’s access to controlled substances and potentially dangerous byproducts. Substantial work also needs to be completed to fully develop the state’s resources for supporting the hemp industry for the benefit of producers, processors, and other business owners alike. It is likely that changes will continue to occur at both the state and federal level as regulators and producers gain experience and the law regarding cannabis production expands.

for hemp growers.103 While this provided a system to track the location of hemp processing, it failed to offer much in the way of enforcing the Controlled Substances Act or protecting public health. Additionally, law enforcement groups expressed concern that KDA lacked the expertise to regulate the equipment and methods commonly utilized in hemp processing and to oversee the storage of solvents and waste products that normally result from processing activities. As a result of these issues, prior to KDA exercising any of its statutory authority in this area, the decision was made to transfer authority to regulate Kansas hemp processors to the Kansas State Fire Marshall.104 The State Fire Marshall’s office is experienced in regulating pressurized production systems, boilers, and related facilities, all of which are commonly used in hemp processing. Further, since the State Fire Marshal and his or her agents are authorized law enforcement officers, their ability to monitor waste and by-product disposal and assist law enforcement as needed made the State Fire Marshall’s office a better fit than KDA to regulate hemp processing. The proposed transfer of authority to the State Fire Marshall was to be introduced in the 2020 legislative session, but because of the shortened COVID-19 agenda, the matter was dealt with in Senate Bill 66, which contained a budget proviso giving the State Fire Marshall the ability to assume regulatory authority over hemp processors for fiscal year 2021.105 The interested parties will attempt to formalize this agreement in the 2021 legislative session. In the


Additional Hemp Production Considerations

The legalization of commercial industrial hemp has not happened in a vacuum. Indeed, the complexity of the resulting legal and economic landscapes means that the creation of commercial hemp markets has impacted many other areas only indirectly related to the production and sale of hemp. Consequently, those who wants to make inroads in this emerging industry need to be mindful of the many evolving tangential restrictions and requirements that may need to be navigated in doing so. A. Credit and Insurance The issue perhaps of most concern to new hemp producers has been the ability to obtain credit to finance hemp operations and insurance to cover hemp crops. Credit and insurance are essential to any agricultural operation but were largely unavailable to hemp producers while hemp remained a controlled substance. With the 2018 Farm Bill removing hemp from the Controlled

u | March/April 2021 35

industrial hemp regulations t Substances Act, the Federal Crop Insurance Corporation is now able to offer industrial hemp policies. Coverage was also available during the 2020 growing year under USDA’s Whole Farm Revenue Protection Program for producers licensed through a research pilot program or an approved commercial program.106 The Whole Farm Revenue Program allows insurance coverage of all revenue for commodities produced on a farm up to a total insured revenue of $8.5 million and is a popular insurance option for specialty and non-traditional crops such as hemp.107 Additionally, in an effort to provide a degree of confidence to potential creditors, the Kansas commercial hemp regulations provide for the transfer of a commercial hemp license to a creditor who needs to take possession of a hemp crop for the purposes of settling a debt.108 This area is likely to continue to evolve at the federal level, but hemp producers do now have significantly better financing and insurance options than were available several years ago. B. Water Rights In addition to providing a new crop opportunity for experienced farmers, the development of a hemp market has also brought new producers to the agriculture industry. While this has the potential to be beneficial in many ways, it has also presented a general learning curve, as non-traditional producers familiarize themselves with basic agricultural regulatory frameworks. Some of the most prominent regulatory requirements relevant to agriculture are in the area of water rights. Many farmers are accustomed to raising irrigated crops by utilizing water rights granted pursuant to the Kansas Water Appropriation Act (“KWAA”).109 Under the KWAA, any use of water that is not domestic must be permitted and is then regulated by KDA’s Division of Water Resources.110 Irrigation of a hemp crop is an agricultural use of water that requires a DWR permit and DWR oversight. These requirements also apply to water use for hemp in a greenhouse setting, which is considered an industrial use of water under the KWAA.111 Many new hemp growers were not aware of the requirements of the KWAA, however, and some attempted to develop water use for their crops without the necessary permits. This required DWR to work cooperatively with KDA’s Plant Protection Program to educate new producers. Outreach conducted in this regard included mailing information about the basics of water rights, providing local DWR field office contact information, reminding hemp licensees that it is illegal to irrigate without a water right, assisting producers with permitting their water rights, and helping producers deal with local groundwater management district processes. DWR also worked with some producers to develop temporary water rights due to the research nature of the 36 The Journal of the Kansas Bar Association

program. Following these interactions with stakeholders, KDA anticipates Kansas hemp producers will be better informed of the KWAA’s requirements moving into the commercial program. C. Pesticide Use Another issue commonly frustrating to producers, particularly under the research program, was the lack of effective pesticides approved for use on hemp, but significant strides have been made in this area in the last year. The research program regulations provided that no other crops could be interplanted with hemp.112 This prohibition on interplanting had the unintended effect of prohibiting the use of cover crops, which could have provided an organic form of pest control in hemp fields.113 This proved problematic because the United States Environmental Protection Agency (“EPA”) had not approved any pesticides for use on hemp as of the passage of the 2014 Farm Bill, and producers were thus left with virtually no effective methods of pest control available to them.114 Since December 2019, however, EPA has approved the addition of hemp to the uses of 47 pesticides.115 Of those, 46 are biopesticides and one is a conventional pesticide.116 KDA has also taken steps to provide producers with organic pest control options independent of EPA restrictions, as the commercial regulations make explicitly clear that it is permissible to plant cover crops in hemp fields.117 Additionally, EPA is still receiving numerous applications to add hemp use to pesticide product labels, so hemp producers should have sufficient pesticide options going forward. D. Hemp in Other Products Similar to EPA’s authority to regulate pesticide use, the use of hemp in products intended for consumption by humans or animals is regulated at the federal level by the U.S. Food and Drug Administration (“FDA”). FDA has approved the use of food ingredients derived from hemp seed, including hulled hemp seed, hemp seed protein powder, and hemp seed oil.118 These products typically contain no THC or only trace amounts of THC, and FDA has been clear that the introduction into interstate commerce of any food or dietary supplement containing THC or CBD is prohibited under section 301(ll) of the Federal Food, Drug, and Cosmetic Act. As the reason for this prohibition, FDA cites the significant unknowns regarding the side effects of CBD consumption, particularly over an extended period of time.119 An important distinction to note is that as long as food products containing CBD are not introduced into interstate commerce, are not labeled or advertised as providing medical benefits, and do not contain THC, such products are currently lawful for human consumption in Kansas. FDA has similarly prohibited the use of all forms of hemp in animal feed, and, until further notice, KDA

industrial hemp regulations

will not approve any label for animal feed or treats sold in Kansas that lists hemp or CBD as an ingredient, and will require that any product with such a label that is found in a store be removed.120 Additionally, FDA has approved only one drug containing natural CBD, Epidiolex, which is approved for the treatment of seizures associated with a few rare diseases.121 Otherwise FDA has issued warning letters to companies marketing CBD as therapeutic or as a treatment for disease.122 Establishments that sell hemp products for human consumption as a food or dietary supplement are regulated by KDA’s Food Safety Program under the authority of Kansas Food, Drug and Cosmetic Act.123 KDA’s Dairy and Feed Safety Program regulates animal feed through the Kansas Commercial Feeding Stuffs Law124 and is primarily responsible for approving labels on animal feed, including treats, sold in Kansas. Kansas has seen a rise in establishments seeking to sell CBD products intended for human or animal consumption, and many of their proprietors have expressed concern regarding the finer points of this area of law.125 Of course, ensuring compliance with the requirement that hemp products intended for human or animal consumption do not contain THC will require inspection and testing to verify the products are legal. It is not yet entirely clear how this will be handled in the absence of an explicit legislative mandate, but there has been some concern regarding the capacity of local and state officials to meet this regulatory burden. Ultimately, the success of businesses selling hemp products, as well as the extent to which administrative issues may arise in regulating them, remains to be seen. FDA continues research to fully understand the effects of CBD consumption on both humans and animals, and it maintains a list of pertinent questions on its website. 126 This area of law is subject to change as more knowledge is gained. E. Other Legal Issues The availability of credit and insurance, the regulatory schemes governing pesticide applications and water use, and the legality of hemp and hemp extracts as an additive in other products are just a few of the primary issues that owners of hemp-oriented enterprises will need to consider before making substantial investments. Issues common to all types of business endeavors will also be worth bearing in mind. These include any zoning rules that may apply when considering the location of a business, basic business structure, succession planning, and taxation. How carefully all of these issues are considered will likely have a significant impact on how successful a hemp enterprise is as the market evolves.



The versatility of hemp makes it a potential economic boon for Kansas farmers and other business owners. However, the long-standing prohibition on hemp production in the United States means that present-day producers may lack knowledge essential for successfully producing the crop. The 2014 and 2018 Farm Bills have paved the way for hemp production in Kansas as well as the rest of the country, but production thus far has been somewhat stymied by regulatory limitations and has revealed there is much to learn about hemp production. Additionally, several significant loose ends remain to be dealt with at the state level during the 2021 legislative session. Hemp production and the sale of hemp products touches many areas of the law and implicates several complex regulatory schemes. Practitioners need to be aware of all these factors as they guide clients through any hemp-related endeavor and also need to stay informed of new developments. The state of the law in all of the areas discussed in this article is likely to continue evolving rapidly in the coming years as both producers and regulators become more knowledgeable about hemp production. u Kenneth Titus serves as Chief Counsel to the Kansas Department of Agriculture and teaches water law at the University of Kansas School of Law. He previously served at the Kansas Department of Transportation and the Office of the Attorney General and is a graduate of the University of Kansas School of Law. He also received a Master of Arts in History from Kansas State University. Stephanie Murray has served as a staff attorney for the Kansas Department of Agriculture since 2018, working primarily in the areas of food safety and plant protection. She is a graduate of Kansas State University and a 2017 graduate of Washburn University School of Law. References 1.

2. 3. 4. 5.

Kim Nunley, The History of Hemp in America, Med. Marijuana, Inc. (Apr. 22, 2020), History of Hemp in the US, Ministry of Hemp (Nov. 2019), https:// See Agricultural Act of 2014, Pub. L. No. 113-79, 128 Stat. 649 (2014); Agricultural Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490. Nunley, The History of Hemp in America, supra note 1. Id. In 1632, the Virginia Assembly mandated that “every planter as soone as he may, provide seede of flaxe and hempe and sowe the same.”

u | March/April 2021 37

industrial hemp regulations t

6. 7.

8. 9. 10. 11. 12. 13. 14.

15. 16.



19. 20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Id. Hemp was even allowed to be exchanged as legal tender in colonial Pennsylvania, Virginia, and Maryland. Marijuana Timeline, PBS: Frontline, etc/cron.html (last visited Dec. 6, 2020). Oscar H. Will III, The Forgotten History of Hemp Cultivation in America, Farm Collector (Nov. 2004), https://www.farmcollector. com/farm-life/strategic-fibers. Marijuana Timeline, supra note 5. Much of the early public apprehension surrounding cannabis in America was rooted in prejudice against the large numbers of Mexican immigrants who immigrated to the United States following the Mexican Revolution. Id. These immigrants represented most Americans’ first exposure to recreational marijuana use, and prejudice against them quickly became entangled with fears about cannabis. Id. Sam Gunnells, Hemp vs. Marijuana: Very Different Effects, Remedy Rev. (Aug. 12, 2020), History of Hemp in the US, supra note 2. Id. Id. Id. Id. See Thomas A. Duppong, Note, Industrial Hemp: How the Classification of Industrial Hemp as Marijuana Under the Controlled Substances Act Has Caused the Dream of Growing Industrial Hemp in North Dakota to Go Up in Smoke, 85 N.D. L. Rev. 403 (2009). Id. Global Industrial Hemp Market 2019-2023: Rise in Legalization of Hemp Cultivation to Boost the Market, Bloomberg (June 11, 2019, 5:00 A.M.), Agricultural Act of 2014, Pub. L. No. 113-79, § 7606(a), 128 Stat. 649. Notably, the 2014 Farm Bill did not actually remove hemp from the definition of marijuana within the Controlled Substances Act; it simply created an exemption for hemp produced under a research program authorized by the Farm Bill. Id. Id. § 7606(b)(2). The THC concentration of most marijuana ranges from 8-30 percent. People v. Cox, 429 P.3d 75, 77 n.2 (Colo. 2018) (citing Legislative Council Colo. Gen. Assembly, 2018 State Ballot Information Booklet 6 (Sept. 11, 2018), Agricultural Act of 2014 §7606(a). See S.B. 14-184, 69th Gen. Assemb., 2d Reg. Sess. (Colo. 2014). See K.S.A. 2-3901 to 2-3909 (2018) (amended 2019). Id. 2-3902. Id.; Industrial Hemp Public Forums and Outreach, Kan. Dep’t of Agric., (last visited Dec. 6, 2020). See L.B. 1001, 103d Leg., 2d Reg. Sess. (Neb. 2014); H.B. 2913, 56th Leg., 2d Sess. (Okla. 2018). K.A.R. 4-34-4 (2019). K.S.A. 2-3902(b). K.A.R. 4-34-3. K.S.A. 2-3902. Id. Id. 2-3901. K.A.R. 4-34-6. Id. 4-34-5. Id. 4-34-20; 4-34-17; 4-34-18. Id. 4-34-17. Id. 4-34-19. Id. Id. Id. Id. 4-34-7. Id. 4-34-15. Kan. Att’y Gen. Op. No. 2018-10 (Aug. 24, 2018).

38 The Journal of the Kansas Bar Association

42. K.A.R. 4-34-15. 43. See Robert Hoban, Authorities Grapple with New Hemp Law Enforcement, Forbes (July 1, 2020, 1:34 A.M.), sites/roberthoban/2020/07/01/authorities-grapple-with-new-hemplaw-enforcement/#5094637d7dd3. In 2019, two brothers operating a Holly, Colorado-based hemp farm were charged with multiple marijuana-related felonies in Seward County, Kansas when a shipment of their hemp that had been bound for California was detained in Kansas. Dan Flynn, Now Growing Hemp, Not Deadly Cantaloupe, Jensen Brothers Face Felony Charges in Kansas, Food Safety News (July 30, 2019), Regulators and producers alike were hopeful that the passage of the 2018 Farm Bill would remedy the confusion caused by variable state laws regarding hemp and marijuana, but significant uncertainty has remained, and has given rise to at least one federal court of appeals case. See C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541 (7th Cir. 2020), reh’g denied (Aug. 6, 2020). In 2019, the Indiana legislature prohibited the manufacture, financing, delivery, and possession of smokable hemp. Id. at 544. A group of hemp sellers sought an injunction against those prohibitions, making preemption and Commerce Clause claims. Id. at 544–45. The United States District Court for the Southern District of Indiana agreed and preliminarily enjoined the law, but the Court of Appeals for the 7th Circuit reversed, holding that the 2018 Farm Bill did not expressly preempt the Indiana law and that the hemp sellers’ claim that the Indiana law violated the Commerce Clause was not likely to succeed. Id. at 544–45, 548–49. 44. K.A.R. 4-34-16. 45. See Kan. Legis. Div. of Post Audit, Kan. Dep’t of Agric., Evaluating the Economic Impact of Hemp Production in Kansas (Sept. 2020), uploads/2020/09/The-Rundown-Transcript_Industrial-Hemp9.2020. pdf. 46. Id. 47. Id. 48. Id. 49. Id. 50. See Letter from Dr. Marty Draper, dep’t head, Kansas State Univ. Dep’t of Plant Pathology, to William Richmond, Chief, U.S. Domestic Hemp Production Program, (Oct. 8, 2020) (on file with the United States Dep’t of Agric.). 51. Id. 52. Id. 53. Id. 54. S. Sub for H.B. 2167, 2019 Sess. (Kan. 2019). 55. Agricultural Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490. 56. See Id. 57. 21 U.S.C. §§ 801 to 971. 58. 7 U.S.C. § 5940(b). 59. Agricultural Improvement Act of 2018 § 12619. 60. Id. § 10114. 61. Id. §§ 297B, 297C. 62. Id. § 297C(a)(2). 63. Id. 64. Id. § 297B(e). 65. Id. 66. Id. 67. Id. 68. Id.§ 297C. 69. Id. Only two states, Idaho and Mississippi, do not allow for any hemp production. State Industrial Hemp Statutes, Nat’l Conf. of State Legislatures (Apr. 16, 2020), agriculture-and-rural-development/state-industrial-hemp-statutes. aspx. 70. 21 U.S.C. §§ 301 to 399i. 71. Agricultural Improvement Act of 2018, Pub. L. No. 115-334, §297D(c), 132 Stat. 4490.

industrial hemp regulations

72. See, e.g., K.S.A. 2-3905 (“It is the intent of the legislature of the state of Kansas that the implementation of the commercial industrial hemp act by the Kansas department of agriculture shall be conducted in the least restrictive manner allowed under federal law.”); Press Release, Ky. Dep’t of Agric., Quarles Submits Kentucky’s Industrial Hemp Plan to USDA (December 20, 2018), press-releases/2018/Quarles-Submits-Kentucky-s-Industrial-HempPlan-to-USDA.html. 73. K.S.A. 2-3901 to 2-3909. 74. See K.S.A. 2-3906. 75. 7 C.F.R. § 990.3. 76. See 8 Colo. Code Regs. § 1203-23:4. 77. See generally 21 U.S.C. § 823; 21 C.F.R. § 1301 et seq. (These upgrades were not possible in some state and private labs that allow for medical or recreational marijuana testing because such activities are not compatible with the DEA certification requirements.) 78. 7 C.F.R. § 990.27; 84 Fed. Reg. 211, 58529–58530 (Oct. 31, 2019), pdf. 79. 21 C.F.R. § 1300.01. 80. Letter from Michael M. Beam, Sec’y, Kan. Dep’t of Agric., to William Richmond, Chief, U.S. Domestic Hemp Production Program (Jan. 10, 2020), available at 81. K.S.A. 47-416a. 82. S.B. 345, 2020 Leg. (Kan. 2020). 83. Press Release, USDA Agric. Mktg. Serv., U.S. Dep’t of Agric., USDA, DEA Provide Options for Labs, Disposal of Non-Compliant Hemp Plants (Feb. 27, 2020), 84. 85 Fed. Reg. 174, 55363–55366 (Sept. 8, 2020), https://www.govinfo. gov/content/pkg/FR-2020-09-08/pdf/2020-19746.pdf. 85. K.A.R. 4-34-22. 86. K.A.R. 4-34-3. 87. K.A.R. 4-34-22. 88. Id. One issue that arose in the context of criminal history record checks over the course of developing Kansas’s commercial hemp program was the seeming inconsistency between the system that USDA devised for applicants to submit their criminal history to the agency and the Federal Bureau of Investigation’s (“FBI”) normal practice for the handling of criminal history information. USDA’s commercial hemp IFR required that hemp producers regulated directly by USDA request their own criminal history records and then submit the records to USDA along with their application for licensure. See For USDA Licensed Producers Only, U.S. Dep’t of Agric.: USDA Agric. Mktg. Serv., (last visited Dec. 6, 2020). The KBI raised concerns that this practice was not in line with the FBI’s standards governing criminal history records. KBI argued that a mechanism by which individuals could request their own criminal history was created with the intent to provide citizens with an avenue to challenge a criminal history record that they believed was inaccurate, not to require individuals to submit those records to a government agency, and also cited the fact that an individual who requests their own criminal history records will be provided with more information about that individual’s criminal history than a government agency would normally receive if the agency requested criminal history records pertaining to a private person. KDA made several attempts to gain clarity on this issue, but never received a clear answer from USDA regarding whether the FBI had ever informed USDA that the method of criminal history record submission prescribed by the IFR was impermissible. 89. K.S.A. 2-3906. 90. K.A.R. 4-34-26. 91. See, e.g., K.A.R. 4-34-3, 4-34-22. 92. 7 U.S.C. § 5940. 93. See generally USDA, DEA Provide Options for Labs, supra note 84. 94. K.S.A. 2-2902. 95. K.A.R. 4-34-8.

96. K.S.A. 2-3908. 97. See C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541, 543 (7th Cir. 2020), reh’g denied (Aug. 6, 2020). 98. K.S.A. 2-3909. 99. Id. 100. Id. 101. Id. 102. Id. 103. Id.; K.S.A. 2-3907. 104. S.B. 66, 2020 Leg. (Kan. 2020). 105. Id. 106. Mike McGinnis, Hemp Crop Insurance is Now Available, USDA Says, Successful Farming (Aug. 27, 2019), https://www.agriculture. com/news/crops/hemp-crop-insurance-is-now-available-usdasays#:~:text=If%20you%20are%20planning%20to%20grow%20 hemp%20for,crop%20year%202020%2C%20according%20to%20the%20USDA%20announcement. 107. Id. 108. K.A.R. 4-34-22. 109. K.S.A. 82a-701 et seq. 110. K.S.A. 82a-705. 111. K.A.R. 5-1-1. 112. K.A.R. 4-34-14. 113. See Letter from Christopher G. Henry to the Kansas Dep’t of Agric. (Jan. 5, 2019) (on file with the Kansas Department of Agriculture). 114. Id. 115. Pesticide Products Registered for Use on Hemp, U.S. Env’t Prot. Agency, Registered%20for%20Use%20on%20Hemp%20,Apopka%20strain%20 97%20%2042%20more%20rows%20 (last visited Dec. 6, 2020). 116. Id. 117. K.A.R. 4-34-27. 118. U.S. Food & Drug Admin., GRAS Notice Nos. GRN 000765, GRN 000771, and GRN 000778 (Dec. 20, 2018). 119. What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-Derived Compounds, Including CBD, U.S. Food & Drug. Admin. (March 5, 2020), https:// 120. Assoc. of Am. Feed Control Offs., AAFCO Guidelines on Hemp in Animal Food (May 1, 2019), SiteContent/Announcements/Guidelines_on_Hemp_in_Animal_ Food_May_1_2019.pdf. 121. Press Release, U.S. Food & Drug Admin., FDA Approves New Indication for Drug Containing an Active Ingredient Derived from Cannabis to Treat Seizures in Rare Genetic Disease (July 31, 2020), 122. Warning Letters and Test Results for Cannabidiol-Related Products, U.S. Food & Drug Admin. (Dec. 4, 2020), news-events/public-health-focus/warning-letters-and-test-resultscannabidiol-related-products. 123. K.S.A. 65-601 to 65-692. 124. K.S.A. 2-1001 to 2-1014. 125. See generally Celia Llopis-Jepsen, CBD Oil with THC in it Is Now in Kansas Stores, but Good Luck Figuring Out if it’s Legal, KCUR (July 12, 2019, 1:28 P.M.), 126. What You Need to Know, supra note 120. | March/April 2021 39

ethics: corporate misconduct

Up the Ladder or Out the Door: Corporate Counsel’s Obligations with Respect to Corporate Misconduct By J. Nick Badgerow I.

Introduction and Overview

Lawyers representing a corporation are uniquely situated to learn information from various constituents of the organization – information which may well impact the future of the company. And those constituents trust that their communication of this information to corporate counsel will be protected by client confidentiality. Sometimes, this information implies a violation of a legal duty owed by the company and which could result in substantial harm to the organization. In such a situation, corporate counsel has a number of important obligations, both ethical and corporate, including the obligation to report the information “up the ladder” within the organization. A lawyer finding no solution may in some situations and in some states – though not in Kansas – report the information to authorities outside the organization. Meanwhile, the lawyer must maintain, to the extent possible, the duty of confidentiality owed to the organization.


The Lawyer Represents the Organization

Rule 1.13(a), Kansas Rules of Professional Conduct,1 provides as follows: (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. Even though an organization “cannot act except through its officers, directors, employees, shareholders and other constituents,”2 and though the lawyer receives his or her instructions from one or more constituents within the organization, it is to the organization – and not those individual constituents – to whom the lawyer owes his other 40 The Journal of the Kansas Bar Association

loyalty.3 This is called the “entity theory” of organizational representation.4


Duty To Report “Up”

A. The Rule. Rule 1.13(b), KRPC provides as follows: ( (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the

ethics: corporate misconduct

violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. . . . Under this Rule, [u]nless the lawyer reasonably believes the organization’s best interests do not so require, the lawyer must report misconduct “up the ladder” to the highest authorities in the organization, including, if necessary, “the highest authority that can act on behalf of the organization [under] applicable law. Rule 1.13(b). In a private organization, the highest authority will ordinarily be the corporation’s board of directors or similar governing body. Cmt. [5]. . .5 Another authority notes: [Rule] 1.13(b) governs a lawyer’s obligations to report to a higher authority within the organization –that is, to “report up” the organizational chain. Rule 1.13(b) governs when a lawyer is obligated –shall –report within the organization. . . . The standards requiring a lawyer to report up the chain of command, however, are high. A reporting obligation exists only where a lawyer “knows” that specified conditions exist. . . . Reporting to a higher authority may also include the “highest authority,” depending on the circumstances. The “highest authority” may be the board of directors or even the independent directors under certain circumstances. Comment [5].6 B. Application of the Rule So, what are the circumstances which lead to this duty to report to the board of directors?: 1. The lawyer must “know” that a person within the corporation 2. “has engaged in action, intends to act or refuses to act in a matter related to the representation,” 3. “that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and” 4. “that is likely to result in substantial injury to the organization.”7 Even then, the lawyer is only required to act “[U]nless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so.” Moreover, the Comments to Rule 1.13 state that “[c]lear justification should exist for seeking review over the head of the constituent

normally responsible for it,” and that referring the matter to higher authority is to be done only “[i]n an extreme case.”8 The term “knows” is defined as “actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.”9 C. Enforcement of the Rule Lawyers who violate this rule by failing to seek review by higher authority in the organization have been disciplined10 and subjected to malpractice claims.11 The new Model Rules make it clear that if a lawyer knows an officer or employee for the corporation has undertaken a wrongful act, or intends to act in a way that violates a legal obligation to the corporation or of law that could be imputed to the organization and is likely to result in substantial injury, the lawyer is required to act in the best interest of the corporation, including referral of the matter, if necessary, to the board of directors. Michigan Rule 1.13(b).12 A Kansas case, In re Harding, illustrates this point. The respondent, a city attorney, instead of seeking a review by his organizational client, the city council, wrote a letter to the press and others outside the city, complaining of city actions and disclosing client-confidential information. The Respondent failed to take measures which would minimize disruption of the City and reduce the risk of revealing confidential information when he disclosed confidential information to Mr. Drees, to Mr. Corn, and to the newspaper in his letter to the editor. The Respondent’s conduct resulted in substantial injury to the City. The Respondent failed to proceed in a manner that was in the best interest of the City. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.13(b). Further, the Respondent violated KRPC 1.13(b)(3) when he failed to try to rectify the misconduct within the City by referring the matter to the highest authority in the City. Finally, the Respondent violated KRPC 1.13(d) when he failed to advise Ms. Neish, the Mayor, and the Chief of Police that his representation of the City might be adverse to them. Accordingly, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.13.13 In another Kansas case, In re Bergman, a corporation’s general counsel failed to address or report to the board of directors her knowledge of the diversion and appropriation by two corporate officers of an asset purchase which had been negotiated for the corporation, the attempt to lease the asset to the corporation, and the appropriation of corporate assets for the renovation and improvement of the asset owned by

u | March/April 2021 41

ethics: corporate misconduct t the two officers. “Under subsection (d), the respondent failed to explain to the board of directors that KCT’s interests were adverse to its constituents, Mr. Somervell and Mr. Mader. As such, the hearing panel concludes that the respondent violated KRPC 1.13(b) and KRPC 1.13(d).”14

within the organization that the lawyer represents the employer when its “interests are adverse to those of the constituents with whom the lawyer is dealing.” Consequently, the duty to “report up” under the rule is like the regular duty an employee might have to “disclose information concerning the employer’s business to [his or her] employer,” a duty we characterized in Touchard[16]and Fox[17] as distinctly private. Accordingly, we conclude that an in-house counsel’s duty to “report up” illegal activity to his or her superiors is not the type of clear and substantial public policy that qualifies as an exception to the at-will employment doctrine.18

And in a third Kansas case, In re Diaz, a government lawyer publicly and surreptitiously released concerns about client conduct, including confidential (and classified) information, rather than reporting it up the chain of command. The lawyer was disbarred. When asked why he did not share with his superior officers his concerns about the Navy’s then-refusal to release the information to Ms. Olshansky, Diaz replied, “I was worried about the effect it would have on me. . . . I wasn’t really to put—willing to put my neck on the line and jeopardize my career at the time. . . . [So], I did it anonymously.” On this latter point, the hearing panel held that “[I]f the Respondent disagreed with the actions taken by his client, the Navy, then the Respondent was duty bound to so inform those with decision making power within the Navy.”15 Thus, under Rule 1.13(b), when a corporate lawyer learns that a constituent is violating a legal obligation to the organization or violating a law reasonably imputable to the organization and likely to result in substantial injury to the organization, the lawyer has an obligation to report up the organization’s chain of command, even if the constituent is the lawyer’s direct supervisor. This obligation inheres if the lawyer actually knows that the constituent is acting or intends to act in the manner which is inimical to the organization’s interests. In that instance, the lawyer has a duty to “report up” if a reasonable lawyer would believe that the constituent’s conduct violates a legal obligation and is likely to result in substantial injury to the organization. Rather than take responsibility for not reporting the conduct, it would seem to be safer for the lawyer to report. Moreover, [R]ule 1.13’s plain terms characterize the attorney’s duty to “report up” as serving the employer’s private interest, not an obligation to the public. The rule requires attorneys who suspect that their employer may be involved in illegal activity “that is likely to result in substantial injury to the organization” to “refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization.” Other provisions in the rule allow disclosure of confidential information “to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.” And it instructs lawyers representing the employer to inform “directors, officers, [and] employees” 42 The Journal of the Kansas Bar Association


Duty To Report “Out”

A. The Model Rule – Not the Kansas Rule. Rules for Kansas and non-Kansas attorneys differ. In rare circumstances, where the corporate lawyer has tried every avenue within the corporation to seek review, reconsideration, and reversal of the company’s dangerous action, a lawyer outside of Kansas may be authorized and justified to report the issue outside the organization, e.g. to appropriate governmental authority. In the Model Rules, a lawyer who finds no positive response after reporting the matter to the board of directors may be authorized and justified in reporting the issue outside the organization. Model Rule 1.13(c) provides: (c) Except as provided in paragraph (d), if (1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.19 Under the Model Rule, then, reporting corporate misconduct likely to result in substantial injury to the corporation could be reported outside the organization, e.g. to regulatory bodies or in litigation, if the highest authority in the organization – having been given the opportunity – fails to prevent or rectify it.20 Pursuant to paragraph (c), the lawyer is permitted to “report out” – that is, to “reveal information relating to the representation” outside the organization – if the

ethics: corporate misconduct

lawyer (1) goes up the organizational ladder and informs the organization’s highest authority of misconduct “that is clearly a violation of law” reasonably certain to result in substantial injury to the organization, and (2) the highest authority nevertheless fails to address the problem “in a timely and appropriate manner.” See, e.g., ABA Formal Ethics Op. 08-453 (2008).21 B. The Kansas Rule Kansas law contains no such provision. Kansas’ version of Rule 1.13(c) states: (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer shall follow Rule 1.16 [Withdrawal].22 Thus, in Kansas, if a corporate lawyer takes his/her concerns all the way to the “highest authority” in the organization, and the organization maintains its position, the lawyer’s only alternative is to withdraw, and s/he is not authorized to report the information outside the organization, other than to prevent the client from committing a crime.23 C. Federal Law Regardless of whether state rules authorize or permit disclosure of confidential information outside the organization, a number of federal statutes permit or require corporate counsel to report corporate misconduct, even if that disclosure includes client-confidential information.24 That discussion is beyond the scope of this article.


Duty To Protect And Maintain Confidential Information

A. The Rule In most circumstances, a lawyer owes his/her client the duty to maintain client confidences. Rule 1.6(a), KRPC (Confidentiality of Information), provides in pertinent part as follows: (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, except as stated in paragraph (b).25 This ethical requirement of confidentiality has been “interpreted broadly, with the exceptions being few and narrowly limited.”26 Because confidentiality is fundamental to the attorney-client relationship, violations of the confidentiality rules are treated

by courts with the utmost seriousness. When courts confront cases based upon violations of the confidentiality rules, they have uniformly deprived the party seeking to exploit the confidential information of any possibility of doing so.27 The attorney/client relationship is one that is highly valued by society and protected in the law. The relationship between lawyer and client is as sensitive a relationship as can exist and demands absolute confidence on the part of the client in order to thrive.28 The Comments to the Model Rules explain: A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. . . . This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.29 Of course, information received from an individual constituent within the organization is confidential to the organization, but it is not confidential between the individual and the lawyer.30 B. The Exceptions KRPC 1.6 identifies certain limited circumstances when client confidential information may be disclosed. These exceptions permit a lawyer to disclose confidences “to the extent the lawyer reasonably believes necessary:” (1) To prevent the client from committing a crime;31 (2) to secure legal advice about the lawyer’s compliance with these Rules;32 (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;33 u | March/April 2021 43

ethics: corporate misconduct t (4) to comply with other law or a court order;34 or (5) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.35 For example, an in-house lawyer may disclose such information in pursuit of a wrongful discharge complaint brought against his former employer, to the extent necessary to prove his claim.36 Such disclosures, however, are permitted only “as reasonably necessary” to establish the claim.37 Again, even these limited exceptions only allow disclosure to the extent the lawyer reasonably believes such disclosures are necessary. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.38 California extends the protection of client confidentiality in its version of Rule 1.13. Where either of the Rule 1.13 conditions (illegality or likelihood of organizational harm) exist, the rule says that the lawyer “may” take actions “in the best interest of the organization” to prevent harm, but that in any event s/he “shall not” violate confidentiality.39 But even in that event, California’s rules do not authorize reporting “out.” ABA Formal Ethics Op. 01-424 (2001) mandates that, in disclosing confidential information where authorized, the lawyer must take “reasonable affirmative steps” to avoid unnecessary disclosure and limit the information revealed.40 If one is compelled to disclose client confidences in a public pleading, s/he should seek leave to file the information under seal.41 Finally, ‘[t]he lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation.’ [Rule 1.6]. See also Harris v. The Baltimore Sun Co., 330 Md. 595, 608, 625 A.2d 941 (1993) (Rule 1.6 should be read to prohibit to those needless revelations of client information that incur some risk of harm to the client).42

44 The Journal of the Kansas Bar Association

VI. Out the Door

Faced with this dilemma, the only option may be to withdraw from the representation. (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer shall follow Rule 1.16 [Withdrawal].43 Again, this differs from the Model Rule, which does not expressly provide for withdrawal as an option.44

VII. Conclusion

Lawyers representing corporate, governmental and other legal entities perform important functions. They also frequently receive important and confidential information. But such lawyers must always be mindful of their power, authority, and obligation to identify threats of substantial injury identified in such confidential information, and to make every effort to avoid those threats, even taking it to the highest authority in the organization. The Kansas rules do not permit a lawyer to take that information outside the organization if he or she is met with no success at the corporate level. But the lawyer is free to withdraw from the representation. u J. NICK BADGEROW is a partner with Spencer Fane LLP in Overland Park. Nick served as a member of the Kansas Judicial Council; Kansas Board of Discipline for Attorneys; Kansas Commission on Professionalism; and as Chairman of the Johnson County Bar Ethics and Grievance Committee; Chairman of the Kansas Ethics 2000 Commission; and Chairman of the Kansas Ethics 20/20 Commission. Nick is the editor and a co-author of the KBA Ethics Handbook and has published more than 70 law review and bar journal articles. References 1. 2. 3.

4. 5. 6.

Rule 226, Rules of the Kansas Supreme Court (“KRPC”). Rule 1.13, KRPC, Comment [1]. Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501 (9th Cir. 2009); In re Consumers Power Co. Derivative Litigation, 132 F.R.D. 455, fn. 45 (E.D.Mich. 1990)(lawyer’s “professional obligation was solely to the corporate entity”.) Restatement (Third) of the Law Governing Lawyers, §96(1), Comment (b) (2000). ABA, Annotated Rules of Professional Conduct, Eighth Ed. (2015), p. 241. Iowa State Bar Association, Professional Conduct Advisory Opinion 20-02 (May 2020), available online at default/files/ethicsopinions/Opinion%2020-02%20%28Board%20 Final%29%28May%202020%29.pdf.

ethics: corporate misconduct

7. 8. 9. 10. 11.

12. 13. 14. 15. 16. 17. 18.



21. 22.

23. 24. 25. 26.

See Rule 1.13(b), KRPC. Rule 1.13, KRPC, Comments [4] and [5]. Rule 1.0(g), KRPC. See Redacted v. Redacted, No. 145 MAP 2014 (Pa. 2015) (in-house lawyer disciplined for, inter alia, violating Rule 1.13 in failing to take complaints to the board of directors). Rhode Island Economic Development Corporation v. Wells Fargo Securities, LLC, C.A. PB-12-5616 (R.I. 2013)(malpractice claim against outside counsel properly stated for counsel’s failure to report up the ladder to board of directors). In re Consumers Power Co. Derivative Litigation, 132 F.R.D. 455, 477 (fn. 45)(E.D.Mich. 1990)(emphasis added). In re Harding, 290 Kan. 81, 88, 223 P.3d 303, 308 (2010)(90 day suspension). In re Bergman, 305 Kan. 429, 382 P.3d 455, 462 (2016)(indefinite suspension). In re Diaz, 295 Kan. 1071, 1080, 288 P.3d 486 (2012)(disbarred). Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 13, 148 P.3d 945 (2006). Fox v. MCI Commc’ns Corp., 931 P.2d 857, 861 (Utah 1997); Pang v. International Document Services, 2015 UT 63, 356 P.3d 1190, 1201 (Utah 2015)(footnotes omitted). See also, Redacted v. Redacted, 145 MAP 2014 (Pa. 2015)(Respondent did not present issues unsuccessfully to her superiors, did not seek a separate legal opinion on these matters, did not take “measures . . . to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization.” Instead, she filed her complaint “without giving a thought to filing it under seal.” She was held to have committed a “clear breach of her ethical duties.”) Rule 1.13(c), Model Rules of Professional Conduct. https://www. model_rules_of_professional_conduct/rule_1_13_organization_as_ client/. E.g. see, Nebraska Supreme Court Rule §3-501.13(c); Colorado Rules of Professional Conduct, Rule 1.13(c); Iowa Rules of Professional Conduct, Rule 32:1.13(c); Illinois Rules of Professional Conduct, Rule 1.13(c); Arkansas Rules of Professional Conduct, Rule 1.13(c). ABA, Annotated Model Rules of Professional Conduct, 242 (2015). Rule 1.13(c), KRPC. The Rule in Missouri is the same: “If, despite the lawyer’s efforts in accordance with Rule 4-1.13(b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 4-1.16.” Missouri Supreme Court Rule 4-1.13(c). See Rule 1,6(b)(1), KRPC, and discussion in Section IV, infra. See e.g., 17 CFR §§205.3(d)(2). Rule 1.6, KRPC. In re Bryan, 275 Kan. 202, 222, 61 P.3d 641 (2003).

27. See, In re Potash Antitrust Litig., No. 3-93-197, 1993 WL 543013 (D. Minn. Dec. 8, 1993); United States v. Quest Diagnostics, Inc., 734 F.3d 154 (2d Cir. 2013); and United States ex rel. Doe v. X Corp., 862 F.Supp. 1502, 1504-05 (E.D. Va. 1994). 28. Klages v. Sperry Corp., No. 83-3295, 1984 WL 49135 at *1, *11 (D.C. Pa. 1984). 29. Rule 1.6, Model Rules of Professional Conduct, Comment [2]. 30. N.J. Ethics Op. 664 (1992); R.I Ethics Op. 2003-04 (2003). 31. But see, In re Herron, 441 P.3d 24, 48 (Kan. 2019)(lawyer’s argument was “not credible” that he made disclosures of client confidential information to prevent his client from committing a crime). 32. “A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(2) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.” Rule 1.6, KRPC, Comment [8]. 33. In re Bryan, 275 Kan. 202, 214, 61 P.3d 641 (2003)(disclosures made by lawyer “were not made to establish a claim or defense in any civil or criminal case, . . . there was no pending action between the Respondent and [his former client] [and] the disclosures were not made to respond to allegations in any proceeding;” lawyer censured). 34. When responding to a subpoena or discovery request, the lawyer should first oppose it on the grounds of confidentiality, until ordered to comply. ABA Formal Ethics Op. 94-385 (1994); D.C. Ethics Op. 288 (1999); Neb. Ethics Op. 11-05 (2011). 35. Kansas Ethics Op. 07-01 (2007); ABA Formal Ethics Op. 09-455 (2009); D.C. Ethics Op. 312 (2002). 36. ABA Formal Ethics Op. 01-424 (2001); Heckman v. Zurich Holding Co. of America, 242 F.R.D. 606 (D.Kan. 2007); Burkhart v. Semitool, Inc., 5 P.3d 1031 (Mont. 2000). 37. Spratley v. State Farm Mut. Auto Ins. Co., 78 P.3d 603 (Utah 2003). 38. Rule 1.6, KRPC, Comment [13]. 39. Rule 1.13(c), California Rules of Professional Conduct. 40. ABA Formal Ethics Op. 01-424 (2001). See also, Spratley and Pierce v. State Farm Mutual Insurance Company, 2003 UT 39 (2003); and Alexander v. Tandem Staffing Solutions, Inc., Case No. 4D04-224, Fla. District Court of Appeal (2004). 41. Weeks v. McLaughlin, Case No. 09-2498-JWL/GLR, 2010 WL 11485532 (D. Kan. March 10, 2010), available online at content/pkg/USCOURTS-ksd-2_09-cv-02498/pdf/USCOURTS-ksd2_09-cv-02498-0.pdf. 42. In re Bryan, 275 Kan. 202, 211, 61 P.3d 641 (2003). 43. Rule 1.13(c), KRPC. 44. Rule 1.13(c), Model Rules of Professional Conduct.

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law practice history

A Partnership Agreement from Territorial Kansas By M.H. Hoeflich1 and Sydney Buckley, 2 University of Kansas School of Law Introduction Not a great deal of attention has been paid to the history of the Kansas Bar during the territorial period.3 Yet there were a substantial number of lawyers who established law practices in Kansas Territory, especially in Leavenworth, Lawrence, and Lecompton. The earliest generation of Kansas lawyers came to the territory from all over the United States. Many came from eastern states like New York and Massachusetts. Lawyers from Ohio were also here in large numbers. But the most notable, if not the largest number of lawyers, who established law practices in Kansas Territory were from Missouri.4 Not all came for the purpose of voting to turn Kansas into a slave state. Many came simply to take advantage of the economic opportunities available to those with some knowledge of the law and some capital, either their own or of clients back East. Many of the lawyers who came to Kansas Territory came to Leavenworth and of these a good number had established law practices in Weston, Missouri. Just like today’s Kansas City practices with offices on both sides of the state line, territorial lawyers gained advantage by having both an office in Weston—then a major river city—and Leavenworth, just a few miles across the Missouri River.


ne of the lawyers who began as a Weston, Missouri practitioner and who became a leader not only of the Leavenworth Bar, but also a founder of the City of Leavenworth and an active Kansas politician, was Henry Miles Moore. Moore is rarely remembered today, and when he is, he is remembered as the author of the 1906 Early History of Leavenworth City and County.5 In fact, during his life Moore was an almost larger than life figure whose biography earned four full columns in the 1899 Portrait and Biographical Record of Leavenworth, Douglas, and Franklin Counties.6 Indeed, much of our present knowledge of the early history of the Kansas Bar is derived from Moore’s 1906 work since it contains a ninety-eight page appendix devoted to “Incidents Pertaining to the Early Members of the Leavenworth Bar” which includes biographies of every lawyer who was admitted to the Kansas Bar at Leavenworth in 1855 and signed the roll of admission to the Bar at that time.7 Although Moore does not devote a great deal of space in his appendix to himself, his career as a lawyer, politician, and businessman was quite outstanding. Moore was born in Brockport, New York on September 2, 1826.8 He graduated from Union College in Schenectady in 1835 and studied in law offices in Clarkson and Rochester, New York. He was admitted to the New York Bar in 1848, but went first South to Louisiana and then West the following year and settled 46 The Journal of the Kansas Bar Association

in Weston, Missouri.9 In Weston he opened a law office and also worked for the Weston Reporter. In 1851, Moore entered into a law partnership with O. Diefendorf, a successful lawyer in Weston who was elected as clerk of the Weston Court of Common Pleas in August 1855.10 Moore was very much an opportunist in his law practice, his investments, and his politics.11 When he moved to Weston, Moore was a member of the pro-slavery forces. Within a few years, when he had determined to move to the newly established city of Leavenworth in Kansas, Moore shifted his allegiance to the free state cause. Moore was one of the original stockholders in the Leavenworth Township Association. By September of 1855 Moore had decided to make Leavenworth his permanent home and place of business.12 From that date forward Moore became one of the leaders of the Leavenworth and Kansas Bar. He was elected Attorney-General of the State of Kansas by election of the delegates to the Topeka Constitutional Convention in 185713 and served as a Judge Advocate in the Union Army. Later in life he served in a number of political and municipal roles in Leavenworth and died in 1909 full of honors and beloved by his neighbors. In this brief article we wish to focus on one aspect of Moore’s early legal career: the partnership he formed with Theodore A. Hurd in April 1859.14 By this time Moore’s partnership with O. Diefendorf had dissolved and Moore was rapidly

law practice history

becoming one of the leaders of the Leavenworth (and, therefore, the Kansas) Bar. Fortunately, Moore donated all of his personal and professional papers to the Kansas State Historical Society, and among these is a manuscript copy of the partnership agreement signed by Moore and Hurd on April 1, 1859. This three-page document provides us today with a window into the everyday realities of law practice in Kansas Territory.

Transcript of the Agreement

The following is the transcribed Partnership Agreement from Box 1 of the Moore papers from the Kansas State Historical Society. Articles of Co-partnership between H. Miles Moore and Theodore A. Hurd attornies (sic), both of the city of Leavenworth Kansas. We the undersigned agree to become and by these presents do become copartners in the practice of law in all its branches, at Leavenworth Kansas from and after this first day of April A.D. 1859 until such time as said partners shall mutually agree to a dissolution, or until one of them shall give at least ten day notice to the other of a dissolution at the expiration of which time such copartnership shall be dissolved. And it is mutually agreed that such copartnership shall be upon the following terms, obligations, and restrictions. First The name of such copartnership shall be “Moore & Hurd” and the sole business of said firm shall be the practice of law and such agency business as the said partners may agree to engage in, and its location, the City of Leavenworth, and all business of said firm shall be done in such firm name. Second Each shall bear and pay one half of the expenses of said business, and each shall have and receive one half of the income and proceeds of such business: and all property purchased by said firm and owned by it or received in the course of its said business, shall be owned and held in common share and share alike. Third Each shall give his time and attention, and use his best endeavors to advance the business and interest of said firm and in the performance of the duties thereof. Fourth Neither partner shall make, or sign, the name of said firm to any promissory note, due bill, bond, or other writing obligatory, nor endorse or guarantee any note, draft, or other commercial paper in the name of said firm, or in any other way use the name

of said firm, except in the transacting a legitimate law business, without the written consent of the other member of said firm, and no money received from collections of others, placed in the hands of said firm for collection, or otherwise received by said partners or either of them belonging to said person or persons, shall in any manner be used by said copartners or either of them, but shall at all times be held in readiness for, and subject to the order of the person or persons to whom the same belongs or be used as directed by the [owner]15 thereof. Fifth A Register or Docket shall be kept in which shall be entered all suits prosecuted or defended by said firm as attorneys, and all proceedings taken therein. Sixth Books of accounts shall be kept, in which shall be entered all charges for services performed, and money due and payable to said firm. And in which each partner shall truly enter, all money received by him, and all payments made by him on account of said firm, such Books of Accounts and Registers shall at all times be accessible to each of said copartners. Seventh Each shall account to and pay over to the other one half of all moneys received on account of said copartnership and its business, as fast as the same are received. And they shall each to the other when required render a joint and true account of all moneys received and paid out, and any balance due from one to the other on such accounting shall be paid forthwith to the other. Eighth The Books, and other property furnished by either co-partner to such business, shall be and remain the sole and individual property of the partner so furnishing the same. In Testimony whereof the parties aforesaid have hereunto set their hands to & seals the day first above written. H. Miles Moore (seal) T. A. Hurd (seal)


Lawyers in Kansas Territory tended to practice either as solo practitioners or in two-man partnerships.16 The initial costs of starting a law practice were fairly modest. Enough capital was needed to rent or buy an office, furnish it, and provide some books.17 Moore had several years of law practice in Weston before he moved to Leavenworth. We may assume that his political and business activities formed a basis for his law practice including acting as a land agent for speculators

u | March/April 2021 47

law practice history t who wished to invest in land in and around Leavenworth. Theodore Hurd, on the other hand, was new to Kansas. According to Moore, Hurd arrived in Kansas in 1859 after ten years as a lawyer in Upstate New York and became Moore’s law partner soon thereafter.18 Moore explained that he formed this partnership with Hurd because Hurd was expert in New York Code law, which had formed a basis for the Ohio Code, which, in turn, was the basis for the laws being adopted in the Kansas Territory.19 The partnership agreement makes it clear that Moore considered Hurd to be his equal since, on its terms it was a general partnership in which the partners had equal shares in all of the revenues generated by their activities. Since Moore clearly was better connected in Leavenworth, giving Hurd an equal share in the partnership is a clear indication that Moore believed that Hurd would generate fees sufficient to justify an equal share of the total revenues without regard to which partner generated them. One possibility of why Moore thought that such a fee split was justifiable is found in the partnership agreement’s first section which states that the “the sole business of said firm shall be the practice of law and such agency business as the said partners may agree to engage in . . . .” During this period, much of the most profitable business in which territorial lawyers engaged was land speculation, especially on behalf of non-residents. Moore personally was involved in such speculation not only in Leavenworth, but in the surrounding area.20 It is not at all unlikely that Moore believed that Hurd, with his New York and Ohio connections, would be able to generate substantial fees from Eastern land speculators. To the modern lawyer’s eye, the provisions of the fourth section have a familiar look. The partners agreed that neither partner had the right to use funds deposited with the partnership by others, but rather, those funds had to be used as directed by their true owners. While this does not require all of the protections afforded today’s clients by KRPC 1.15, it does indicate that territorial lawyers were aware of the danger of clients’ funds being illegally used by lawyers in a firm and that these funds were protected by private agreement among the lawyers. Sections five and six of the agreement required that the partnership maintain both written records of cases undertaken by the partners and the revenues generated by each case, as well as detailed records of all revenues and expenses of the partnership. Examples of such nineteenth century law partnership records exist today and are an excellent source for reconstructing the daily work of lawyers of the period. The eighth and final section of the agreement is, in many ways, the most interesting. Although the partnership calls for the partners to share revenues and expenses equally, the eighth section specifies that the books and other property— 48 The Journal of the Kansas Bar Association

presumably furniture—would remain the sole property of the partner who contributed it. Law books in early Kansas were expensive and hard to come by. Office furniture could also be costly to replace.21 Lawyers who entered into partnerships would not want to risk losing a portion of their law libraries nor prized furnishings like a desk or bookcase in a partnership dissolution. The eighth section of the MooreHurd agreement protected both partners against such an occurrence.


Today’s practicing lawyers are generally too busy with the day-to-day practice of law to be able to spend time researching the profession’s history. Even when they do, they tend to look at the history of legal ideas and the development of legal doctrine rather than at how lawyers actually lived and worked a century ago. Yet, such history is fascinating and permits us to understand our professional ancestors and the problems they faced in the practice of law. Documents like the Moore-Hurd partnership agreement are essential to such an understanding. u Mike Hoeflich — John H. & John M. Kane Distinguished Professor of Law.

Sydney Buckley — Class of 2021, University of Kansas School of Law.

References 1. 2. 3.

4. 5. 6.

John H. & John M. Kane Distinguished Professor of Law. Class of 2021, University of Kansas School of Law. Most important are the articles by Paul E. Wilson, Musings of a Smiling Bull: Selected Essays, Articles and Speeches (2000) and those contained in Robert W. Richmond, Requisite Learning and Good Moral Character: A History of the Kansas Bench and Bar (1982). See M.H. Hoeflich, The Lawyers of Old Lecompton, in Tallgrass Essays: Papers from the Symposium in Honor of Dr. Ramon Powers 27-35 (M.H. Hoeflich, Gayle R. Davis, & Jim Hoy, eds., 2001). H. Miles Moore, Early History of Leavenworth City and County (1906). Portrait and Biographical Record of Leavenworth, Douglas, and Franklin Counties, Kansas (1899) [hereinafter Portrait and Biographical History]. This volume is one of dozens of such histories that appeared around the U.S. in the late nineteenth and early twentieth

7. 8. 9. 10. 11.

12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

centuries which highlighted the biographies of prominent men and women. Generally, they were sold by subscription and purchased by those who were featured therein. Moore, supra note 5, at 241–339. Biographical details are taken from Portrait and Biographical History, supra note 6. On the westward movement of young Eastern lawyers in this period, see Hoeflich, supra note 4. See William McClung Paxton, Annals of Platte County, Missouri 202 (1897). On Moore’s complex and changing political activities in the territorial period, see James. C. Malin, From Missouri to Kansas: The Case of H. Miles Moore 1852-1855, in On the Nature of History 129196 (1954). Id. at 145. Id. at 131. Kansas State Historical Society, H. Miles Moore Papers, Box 1. This word is unclear in the manuscript. See Hoeflich, supra note 4. On lawyers’ libraries in early Kansas, see generally Robert A. Mead & M.H. Hoeflich, Lawyers and Law Books in Nineteenth-Century Kansas, 50 U. Kan. L. Rev. 1051 (2002). Moore, supra note 4, at 319–20. Id. at 319. Malin, supra note 11. On the cost of furnishings, see M.H. Hoeflich & William Skepnek, Claims for Loss in Territorial Kansas, 65 U. Kan. L. Rev. 711, 720–21 (2017).

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• increases access to legal services for underserved communities • helps promote access to justice for all Kansans • funds scholarships that benefit Kansas law students • administers the IOLTA grant process benefitting organizations that provide civil legal services and the administration of justice to Kansans • supports efforts to educate the public regarding the law We encourage all Kansas lawyers to become Fellows—it’s an excellent way to give back to your profession, to fund key law and justice programs and to provide volunteer opportunities for you and your colleagues. Your $1,000 pledge may be made online or through the mail. You may pay in annual installments of $100. Online: By mail: Kansas Bar Association • PO Box 751080 • Topeka, KS 66675-1080 Already a Fellow? Wonderful! Please consider increasing your pledge and move to a higher level of giving! If you have questions, please contact Lisa Leroux-Smith: | March/April 2021 49

law students’ corner

Where are your pants?!: Juggling Family, Work, and Law School During a Pandemic By Kate Langworthy


had to do a double take when I saw a girl walking pantless through my Constitutional Law class. My professor seemed unfazed, and none of my classmates even batted an eye. I couldn’t stop myself from blurting out, “Where are your pants?!” There was still no reaction from my professor or classmates. How could they sit straight-faced in a situation like this? Their composure was impressive. I was the only one aware of the mid-class streaker because my three-yearold at least had the good sense to stay outside the view of my webcam and my microphone was muted. Attending law school via Zoom with children at home is a bit of a circus, to say the least. 50 The Journal of the Kansas Bar Association

My life has shared characteristics with a circus for quite some time. When I applied to law school, my personal statement centered around my roles as a working wife, mother, and student and compared balancing those roles to a juggling act. In the past two years, I have learned just how apt that analogy is. Though I lack the coordination to juggle physical objects, my mind attempts to keep numerous theoretical balls in the air at any given time. As the academic part of my brain absorbs new concepts from my courses, my “mom brain” is running in the background thinking about meals that need to be planned, housework that needs to be done, school activities to be completed, and any number of other

responsibilities that I might be dealing with on that day. Add to that the stressors of the pandemic, and my multi-tasking has been kicked into overdrive. In managing this mental load, development of a few key skills has allowed me to be successful, and those skills translate to others juggling many roles in their lives. Flexibility. As life moves forward at increasing speed, the balls I juggle are constantly changing form, sometimes by the minute, and flexibility allows me to adapt. I am naturally wired to crave structure, and before I became a mom, any deviation from a planned schedule would jump-start my anxiety. After having my two daughters, I have been forced to accept that deviation from the plan actually is the plan. As the girls get older and busier with their own activities, there are additional scheduling and financial considerations, and many of the child-related balls I juggle incorporate decisions that could have effects well into the future. Even though they are only 3 and 6, we have started to plan for their lives after high school, whether they choose to go to college or decide to take a different route. As I enter the downhill side of my time in law school and draw nearer to graduation, the number of school and employment related balls in my mental juggling act is also increasing, and the weight of many of them is growing exponentially. I recently started working as a research fellow with the National Agricultural Law Center at the University of Arkansas for ten hours a week, and even though I am working remotely on my own schedule, it is still something additional to manage. At the same time, I am seeking summer employment with the hope that it might blossom into a post-graduation opportunity. There are times that this ball holds the weight of my family’s entire future. It is slowly getting easier to pivot focus and prioritize the most urgent items without being completely thrown off balance. Perspective. There are times that I have to let some of the less important balls drop and pick them up later, and that is okay. Growing up, my mom made and decorated a birthday cake for every one of my sisters’ and my birthdays. I started carrying on that tradition with my girls and spent hours baking and decorating birthday cakes for their birthdays. After starting law school, time to decorate was even more scarce, so I had to let that ball drop. I was happy to find that a sheet cake from Sam’s Club tastes just as good, if not better, than any cake I had baked, and my girls were happy to have their mommy present and stress free to enjoy their birthday party. This is a ball that I hope to pick back up later, but for now, it stays out of my hands. Awareness. Despite my best efforts, I haven’t been able to figure out a way to fit more than 24 hours in a day, so I’ve had to work on understanding both time and human limitations. The standard responsibilities that come with being a wife, mother, student, and a functional adult in general take a large

chunk of that 24-hour period, so the remaining minutes must be invested selectively. I’ve made the decision to forego the more time consuming extra-curricular opportunities like law journal and trial team so that I can spend time with my family, prepare properly for my classes, and get adequate rest. I’ve also had to take care not to put commitments I prefer to do before mandatory commitments. Although I sometimes must drop a ball or two, there are some, like family time, that I simply have to put above all else. By declining extra unnecessary tasks from the outset, I can avoid disappointing others and keep myself on track for success. Humility. Despite having a fantastic support system ready and waiting to help at a moment’s notice, I am a recovering control freak. At times in the past, I allowed stress to reach a crisis point before admitting I needed help, and by then, it was often too late. Thanks to my husband’s constant encouragement and repeated offers from family and friends to help carry some of the mental and physical load, I’ve been able to recognize what balls I don’t have to handle personally and pass them off to someone that is just as qualified. As I’ve navigated attending law school remotely, sometimes while facilitating remote kindergarten at the same time, I’ve been blessed to have Washburn’s faculty and staff as a valuable extension of my nuclear support system as well. Their willingness to help me succeed, in any way they could, made it that much easier for me to swallow my pride and reach out to them for assistance. As the saying goes, “there’s no shame in asking for help.” As I continue honing my mental juggling skills, I am lucky to have the most supportive cheering section in the stands. My daughters are two of the reasons that I am managing so much, but they are also my biggest motivators. I hope that I am serving as a positive example of what they can accomplish with hard work and perseverance, regardless of the circumstances. At some point, they will likely start a juggling act of their own, and hopefully they will have learned a thing or two from my performance in our family circus. u Kate Langworthy is a 2022 J.D. Candidate at Washburn University School of Law. She is originally from Silver Lake, Kansas and holds a B.A. in Interdisciplinary Studies from Newman University. She is a Research Fellow at the National Agricultural Law Center at the University of Arkansas and a member of the executive board of the Washburn Ag Law Society. When she is not studying, Kate enjoys spending time with her family, their dog, and her backyard chickens. | March/April 2021 51


in the news

NEW POSITIONS Re-elected official, Krista L. Blaisdell, took her oath of office as Geary County Attorney. Amy Crawford-Coppola was also selected as magistrate judge for the 8th Judicial District in Geary County. Foulston Siefkin LLP has elected the following individuals to partnership: Trent R. Byquist, Clayton J. Kaiser and Wes J. Kimmel, of the Wichita office. David R. Green & Amanda Wilwert, of the Kansas City office. Trent represents business clients in transactional matters, including contract negotiation and general corporate matters. Clayton counsels clients on matters involving enforcement of employment agreements, he frequently works with healthcare providers. Wes focuses his practice in the areas of environmental law and real estate. David practices construction law and commercial litigation. Amanda advises a broad range of healthcare clients in a variety of transactional and business issues. Amy Fellows Cline was sworn in as a judge of the Kansas Court of Appeals in Topeka, Kansas. Prior to her appointment to the court, she handled civil, criminal, and administrative law matters in state and federal courts. She also represented clients before the Kansas Corporation Commission, Kansas Department of Labor, Kansas Human Rights Commission, and the U.S. Equal Employment Opportunity Commission. She was previously employed with Triplett Woolf Garretson, LLC. Kenneth W. Estes has joined the Family and Criminal Law Department at Calihan Law Firm, P.A., Garden City. He was previously the Kearny county attorney. Paul R. Himmelstein has joined the Kansas City firm of Lewis Rice LLC as a member of the Corporate, Tax and Estate Planning department. He previously practiced with Van Osdol, P.C. Taylor M. Meeks, who was recently admitted in 2020, has joined Woner, Reeder & Girard, P.A. in Topeka. Her field of practice is in banking, business and corporate law, estate planning, real estate, and tax controversies. Ellen G. Neufeld was sworn in as magistrate judge for the 9th Kansas Judicial district for Harvey and McPherson county, Newton.

52 The Journal of the Kansas Bar Association

Joanna B. Orscheln joins the Kansas City office of Baker Sterchi Cowden & Rice, LLC as an associate. Her practice focuses on the defense of corporate clients in the areas of product liability, and personal injury. She previously was employed with Morrow Willnauer Church, LLC. Charles R. Regan has joined the Regan Law Firm, L.L.C. as a member in Kansas City, Missouri. His primary practice is in personal injury and medical malpractice, as well as high level State and Federal criminal litigation. Dan A. Saathoff has joined Kennyhertz Perry, LLC, as a litigator and transactional attorney in Mission Woods, Kansas. He handles negotiations of business agreements and represents construction companies and small businesses. He previously worked with Wallace Saunders, Chtd. Melinda M. Ward has joined the Overland Park office of Spencer Fane LLP as partner in the Tax, Trusts & Estates Practice Group. She dedicates her practice to complex estate, business, gift, and tax planning issues.

NOTABLES Cydni K. Gilman, Wichita, has retired from Foulston Siefkin LLP on December 31, 2020, having practiced federal criminal defense there on a retained and appointed basis. She was an attorney with the Wichita Federal Public Defender Office from 1983-2013. She worked at the Wichita Legal Aid Society from 1978-1983. Danielle M. Hall, Topeka, Executive Director of the Kansas Lawyers Assistance Program, will speak at the ABA Tech Show hosted by the American Bar Association. She will discuss the importance of professional boundaries that protect both the lawyer and client. She will also join Houston attorney, Temi Siyanbade, to review technology that can help a lawyer practice remotely. David R. Heger, Paola, has retired as longtime County Counselor on December 31, 2020, from the Miami County Board of Commissioners. He was elected to serve two terms as county attorney in 1977. He began serving as county counselor in 1994 with a combination of serving for over 43 years in Miami County. Michelle M. Wade, Olathe, of Jetstream Aviation Law authored an article on aviation regulatory compliance, “Dodge Legal Turbulence: Cover FAA Regulations in

Your Compliance Program.” This article was published in the February 2021 issue of the SCCE CEP Magazine, a publication of Corporate Compliance and Ethics (SCCE). u

NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service. If there are questions or concerns regarding information printed here, please feel free to inquire through the following email:


Jerry Bales

Henry Cox

William Sanders

Richard Merker

Leland Shurin

Jerry Palmer

Diane Sorenson

Vance Preman

Roger Warren

Larry Rute

Bruce Waugh

The State’s Top-Rated Mediators now posting Available Dates Calendars free at For more information on the National Academy of Distinguished Neutrals, please visit | March/April 2021 53


Edward G. 'Ed' Collister Jr. (10/8/1939 - 12/1/2020) Edward G. ‘Ed’ Collister Jr. passed away December 1, 2020, at his home in Lawrence, Kansas, surrounded by family. Ed was born October 8, 1939, in Islip, New York to E. Gordon Collister and Dorothy Munyer Collister. The family moved to Lawrence, Kansas following his father's acceptance of a faculty position at the University of Kansas. Ed attended local schools, was a graduate of Lawrence High School in 1957, Kansas University in 1961 with a B.A. in History and Political Science, and the Kansas University School of Law in 1964 with an LLB. During high school and college, Ed was an accomplished member of debate teams, received numerous academic awards and was a Summerfield Scholar. Ed was selected to the Law Review 1963-64 in law school. Ed was admitted to the Kansas Bar in 1964, the U.S. Court of Appeals, 10th Circuit in 1967, and the United States Supreme Court in 1972 After law school, Ed practiced law in the Kansas City area before being hired as the Kansas Assistant Attorney General from 1968-1972, and in that capacity argued before the United States Supreme Court. Ed was president of the Douglas County Bar Association in 1981-1982. He was a member of the Board of Governors of the Kansas Bar Association from 1997-2003. Throughout his career, Ed wrote numerous articles for the KU Law Review, the Washburn Law Journal, the University of MoKC Law Review, and other legal publications. Ed also served as lecturer at Washburn Law School and the KU Law School. Ed was a member of the Hugh Means Inn of Court, the Judicial Council Criminal Law Advisory Committee, 54 The Journal of the Kansas Bar Association

and was appointed by the Governor to the Criminal Justice Recodification Project. From 1974-2014, Ed was the Examiner for the Commission on Judicial Qualifications. In 2019, Ed was awarded the Liberty Bell Award from the Douglas County Bar Association acknowledging his many contributions to the community as a Douglas County citizen. Throughout his time in Lawrence, he spent much time and energy working with the young lawyers in Douglas County, providing seminars and advice to aid them in representing their clients. He was a well-respected member of the Bar and much admired by his colleagues. He was a judicious debater, seeker of the truth, and stalwart defender of The Constitution. Ed enjoyed playing handball with his handball buddies three times a week, gardening in North Lawrence, providing landscaping services after and around legal work, throwing a good costume party, participating in parades in Lawrence and Breckenridge, spending time hiking and relaxing in Colorado (mostly Summit County), and dabbling in ownership with various local businesses. Ed is survived by his wife of 57 years, Anita, three daughters Sherri Wagner (Overland Park, KS), Laurie K Hay (husband Steve Rosenzweig, of Basehor, KS), and Kelly C Leid (husband Kelly R Leid of Phoenix, AZ), seven grandchildren: Nicholas Hay, Jeremy Wagner, Taylor Wagner, Sam Hay, Kassidy Wagner, Campbell Leid and Brody Leid, two step grandchildren Matthew Rosenzweig and Dana James; and siblings: Richard Collister (St. Louis, MO) and Christine Collister (Overbrook, KS). He was preceded in death by his mother and father, Dorothy and E. Gordon Collister, Sr. Graveside services will be held at a later date. A Celebration

of Life will be planned after restrictions for gatherings are no longer in place. The family would like to acknowledge the kindness and care provided by Kansas Palliative and Hospice Care. In lieu of flowers, memorial donations may be made to the Kansas University Alzheimer's Disease Center, KU Endowment, or the charity of your choice.

Louis F. ‘Lou’ Eisenbarth (12/1/1924 – 2/18/2021) Louis F. “Lou” Eisenbarth, 96, of Topeka, passed away at his home on Thursday, February 18, 2021. He was born on a farm East of Corning, Kansas, the sixth of seven children on December 1, 1924, the son of Henry and Agnes (Ross) Eisenbarth. He graduated from Corning High School in 1942 and went on to receive a bachelor's degree from Washburn University in 1952 and continued his education receiving his Law Degree from Washburn University in 1954. He served in the United States Army for eighteen months as a special agent in the Counterintelligence Corp. Lou worked as a Lawyer. He practiced law in Topeka for 51 years, a partner in the firm of Sloan, Listrom, Eisenbarth & Glassman, retiring December 7, 2005. He received the Honorable E. Newton Vickers Professionalism Award in 2007. He taught seminars on real estate law and corporation law for the Kansas Bar Association and other groups. He authored the Kansas Real Estate Handbook on contracts and closings. He was president of the Topeka Bar Association from 1976-1977 and a member of the Kansas Bar Association and American Bar Association; a member of the Labor, Taxation, Corporation and Real Estate sections of the American Bar Association; and he was admitted to the Kansas Bar, Federal District Court, United States Tenth Circuit Court of Appeals, United States Tax Court, United States Court of Claims, and the United States Supreme Court. Lou had many ties to the Topeka community. He served as an assistant city attorney for the City of Topeka from 1957-1960. He was an adjunct professor of law teaching Corporation Law and Creditor Rights at Washburn Law School from 1967-1978. He served on the Washburn University Board of Regents from 1981 through 1987 and was the Chairman of the Board from 1982-1984. He served as member of the governing board of the Juvenile Detention Center, Washburn Catholic Campus, Advisory Board of the Presbyterian Manor, member and Chairman of St. Francis Foundation, member, and chairman of the Hayden Board of Trustee. He was also a member of Christ The King Catholic Church, Knights of Columbus Council #8411, and the Topeka Country Club. Lou married Nadine (Horseman)

Lemmon on August 26, 1989, in Topeka. Survivors include his wife, Nadine Eisenbarth; his stepchildren, Diane (Doug) Stine of Kansas City, Missouri, Kent Lemmon of West Palm Beach, Florida, and Kaleen (Arthur) Fogel of Los Angeles, California; his step-grandchildren, Olivia Stine (Milorad Milic), Jaxson Fogel, Luke Fogel, Kane Fogel, Chloe Fogel and Cristian Fogel; many nieces and nephews. He was preceded in death by his parents; four brothers, Lawrence, Cyril, Norbert, and John Eisenbarth; two sisters, Margaret Vondenkamp and Dorothy Henry. Lou enjoyed traveling, golfing, gardening, and most of all spending time with his family. Due to Covid-19 services will be private. Interment will take place at Mount Hope Cemetery, 4700 SW 17th Street, Topeka, Kansas 66604. Dove Cremations and Funerals- Southwest Chapel, 3700 SW Wanamaker Rd., Topeka, Kansas 66610 is assisting the family. Memorial contributions may be made to Midland Care, 200 SW Frazier Circle, Topeka, Kansas 66606 or to Christ The King Catholic Church, 5973 SW 25th Street, Topeka, Kansas 66614. To leave a special message for the family online, visit www.

H. Kent Hollins (6/16/1944 – 1/17/2021) H. Kent Hollins passed away Sunday January 17, 2021 at Stormont Vail Hospital. Kent was born June 16, 1944, in the State of Washington. Kent is survived by his wife Debra Hollins, and three children: Chad Hollins, Eric Blake, and Michelle Rose. Per his wishes, there will be no service or funeral. Debbie would like to thank all the doctors, nurses and staff at Stormont Vail who were there with Kent in the end. Memorial Contributions can be made to the following: Topeka Police Department C/O Gretchen O’Donovan Care of Unmanned Aerial Program 327 S Kansas Ave., Suite 100 Topeka, Kansas 66603

Harold Wayne Powers Jr. (6/11/1948 - 1/3/2021) Harold Wayne Powers Jr., born June 11, 1948, in Topeka, Kansas to Dr. Harold Wayne Powers and Ruth Nelson Powers. Wayne (also known as “Butch”) attended Topeka West High School, then the University of Kansas, where he was a member of Delta Tau Delta fraternity. He earned a law degree at the Washburn University School of Law. Wayne

u | March/April 2021 55

obituaries t was a partner at the law firm Wallace Saunders where he spent his entire career from 1974 until his retirement in 2004. His friendships there were an important part of his time at the firm. Wayne’s retirement was brought about by the diagnosis of a rare blood cancer. In 2011, he received a bone marrow transplant. He recovered to enjoy cherished experiences with family and friends. Later, he became a devoted volunteer with the University of Kansas Cancer Center, where he was part of their mentorship program for other bone marrow transplant candidates and recipients. The family wishes to thank the doctors, nurses, and staff at the University of Kansas Blood & Marrow Transplant clinic. He is survived by his wife of 51 years, Jerre Dunaway Powers, and his daughter, Ashley Daly (Patrick). He is also survived by three wonderful grandchildren, Lucy, Patrick, and George. Wayne had definite loves: family, friends, church, golf, and Jayhawk basketball. His steadfast love of the Lord has been his anchor. Beginning in the mid-1970s, Wayne has been a devoted member of Hillcrest Covenant Church, which sustained his faith over the course of his life. In lieu of flowers, please consider a donation to Hillcrest Covenant Church ( or the Blood & Marrow Transplant Fund at the University of Kansas Health System. ( A private service was held on January 7, 2021, due to coronavirus restrictions. Interment will be at Resurrection Cemetery in Lenexa, Kansas.

Robert W. “Bob” Wise (4/14/1934 – 1/6/2021) Robert W. “Bob” Wise, age 86, passed away Wednesday, January 6, 2021, at KU Medical Center, Kansas City. Bob was born April 15, 1934, to Jake and Ruth Wise and raised on a farm in Fernald, Iowa. Bob graduated from high school in 1952 and moved to McPherson to attend McPherson College and play football. He received his bachelor’s degree from McPherson College in 1956, married his college sweetheart, Anita McSpadden, and coached football before moving to Washington, DC for law school. He received his law degree, with honors, from George Washington University in 1961. While in law school, he worked as a Special Agent for the Office of Naval Intelligence and was a member of the board of editors of the George Washington University Law Review. Bob loved the practice of law and his partners and was proud of his firm’s 135-year history. He was an active member of the McPherson law firm Wise & Reber L.C. at his death. He practiced for 60 years in 56 The Journal of the Kansas Bar Association

the areas of litigation, business, banking, trusts and estates, arbitration and mediation and never considered retirement. He was past president of the Kansas Bar Association, past chair of the KBA Ethics Grievance Panel, and was a recipient of the KBA’s Professionalism Award, its Outstanding Service Award, and the Kansas Bar Foundation Robert K. Weary Award. He was also a past member of the State Board of Law Examiners, Kansas Annual Survey Committee and was a fellow of the Kansas Bar Foundation. Bob was universally respected by Kansas lawyers and represented thousands of clients. Bob served as an unseen advisor to city and county leaders throughout his career and was instrumental in creating a forward thinking political and business culture in McPherson. As president of the McPherson Industrial Development Company, (“MIDC”), Bob was instrumental in recruiting two of McPherson’s flagship industries, Sterling Drug, now Pfizer Pharmaceutical, and Johns Manville. Bob served on the MIDC Board for 19 years and as President for nine years. During his tenure as President, McPherson’s industrial base enjoyed remarkable growth and expansion. Bob also influenced the retail sector with his work on behalf of the Chamber of Commerce as President. Bob has held numerous volunteer positions including President of the McPherson United Way and as a member of the Memorial Hospital Board of Directors. He led a significant hospital expansion as Chair of the New Building Committee. Bob was a long-time champion of local educational institutions, McPherson College and Central Christian College of Kansas. His support and counsel over the decades was recognized by McPherson College with an Honorary Doctor of Laws degree and his induction into Central Christian College’s Academe of Achievers. He is survived by his wife Anita, son Darrell, grandchildren Erin Holman, Daniel Holman and Shannon Wise, sisters Lu Neher and Betty Wenger, his law partners, and legions of friends and clients. He was preceded in death by his daughter, Rhonda Holman. He was a member of the McPherson Church of the Brethren. A private family memorial service will be held with a private burial at the McPherson Cemetery. A celebration of Bob’s life for his countless friends will be held when such gatherings are safe. Memorial donations may be given to McPherson College or the McPherson County Community Foundation in care of Stockham Family Funeral Home. u

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appellate decisions

Kansas State Supreme Court All opinion digests are available on the KBA website at 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 communication services at or at (785) 234-5696. For the full text of opinions, access the courts’ website at



INDEFINITE SUSPENSION IN RE AMY J. AHRENS NO. 122,332–JANUARY 22, 2021 FACTS: Ahrens, a Kansas-licensed attorney, stipulated to violations of KRPC 8.1(b) (cooperation); 8.4(d) (professional misconduct); and Rule 207(b) (cooperation). After a hearing, the Kansas Board for Discipline of Attorneys found additional violations of KRPC 8.4(c) (dishonest conduct) and 8.4(g) (conduct adversely reflecting on fitness to practice law). Ahrens was admitted to practice in 2012. In 2016, law enforcement observed Ahrens with her boyfriend while he was selling drugs. The couple were arrested in 2016; during the interview process, Ahrens lied to law enforcement on several occasions. Charges were filed against Ahrens and the district attorney sent a copy of the charging document to the disciplinary administrator. The charges were later dismissed after Ahrens cooperated with the investigation of her boyfriend. In an unrelated matter, Ahrens failed to cooperate with the investigation of a disciplinary complaint against her. HEARING PANEL: The hearing panel found that Ahrens engaged in conduct involving dishonesty or fraud when she lied to law enforcement during an investigation of drug activity. This conduct was spurred by a dishonest or selfish motive, which is an aggravating factor. The hearing panel heard evidence that Ahrens has some mental health issues and will not be fit to practice law for at least 18 to 24 months. Both the disciplinary administrator and the hearing panel recommended that Ahrens’ law license be indefinitely suspended.

DUE PROCESS; PARENTAL RIGHTS IN RE P.R. SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 119,745–FEBRUARY 12, 2021 FACTS: In 2015, the State alleged that P.R. was a child in need of care. The natural mother stipulated that P.R. was in need of care and began to work towards reintegration. The State moved to terminate Mother’s parental rights in 2017, citing a lack of progress towards reintegration and the fact that P.R. was doing well in his foster home placement. Mother decided not to contest the action and executed a written relinquishment of P.R. to the Department of Children and Families. Mother signed a notarized form and Mother’s counsel certified that Mother was fully apprised of the consequences of relinquishment. The form was added to the case file but not signed by a DCF representative at that time, as a trial was still needed to terminate the rights of several putative fathers. None of the potential fathers appeared at the termination hearing, so after accepting Mother’s relinquishment and finding the fathers in default, the district court terminated all parental rights and granted consent to adoption. After DCF granted P.R.’s foster parents’ petition for adoption, and refused to place P.T. with a maternal aunt and uncle, Mother moved to withdraw her relinquishment, claiming it was conditioned on DCF’s written acceptance. The district court ultimately denied this motion and that decision was affirmed by the Court of Appeals. The Supreme Court granted Mother’s petition for review.

HELD: There were no exceptions filed to the hearing panel’s final hearing report, so the factual findings were deemed admitted. The Court noted that Ahrens’ transgressions were serious. But it also noted a history of abuse and mental health issues, the loss of a parent, and a decline which resulted in homelessness. While this disciplinary matter was pending, Ahrens received help with her mental health issues and drug dependency and made great strides in fixing her life. The Court encouraged Ahrens to continue her recovery and work towards reinstatement. The Court retroactively imposed suspension effective as of December 20, 2019.

58 The Journal of the Kansas Bar Association

ISSUES: (1) Effectiveness of written relinquishment; (2) voluntariness of Mother’s relinquishment; (3) due process concerns HELD: The language in K.S.A. 2019 Supp. 38-2268(b) which references accepting the relinquishment in writing need not be strictly construed. DCF’s written acceptance of the child is not required for an effective relinquishment of parental rights. Under the facts of this case, DCF could not accept P.R. while there were still putative fathers with potential parental rights. The language of the relinquishment form and the evidence presented shows that Mother’s relinquishment was voluntary. Any assumption that Mother made about family members being allowed to adopt P.R. did not render her relinquishment unknowing or involuntary. Mother received all the process she was due, including the assistance of counsel.

STATUTES: K.S.A. 2019 Supp. 38-2268(b), -2268(b)(1), -2268(b)(4), -2268(b)(5), -2268(b)(6), -2270 PROBATE IN RE ESTATE OF TAYLOR ATCHISON DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED NO. 120,033–JANUARY 22, 2021 FACTS: Thelma Taylor died testate in 2015. The will gave the executor absolute discretion to “distribute any personal property not disposed of” by a separate writing or to sell all of the remaining property, add it to the residue of the estate, and pay the entirety of the estate to the Boys and Girls Club of Atchison, Kansas. Kelly, the executor, and the BGC had differing opinions about how much should be included in the estate. After a supplemental inventory, BGC accused Kelly of converting estate assets. The club asked that Kelly be held liable under K.S.A. 59- 1704 for double the value of any converted property. The district court agreed that Kelly wrongly converted $11,000 in estate property and, using the statute, ordered Kelly to pay $22,000 to BGC. The district court’s order did not specify when it believed the conversion occurred, although it is undisputed that the conversion happened before Kelly initiated estate proceedings. The Court of Appeals unanimously agreed that Kelly converted the property and was liable to the estate. A majority of the panel, though, found that K.S.A. 59-1704 does not allow payment of double damages to individuals who were not acting as the estate’s court-appointed fiduciary at the time of conversion. A dissent argued that the statute’s plain language allowed for double recovery. The Supreme Court granted BGC’s petition for review to solve the dispute. ISSUES: (1) Whether K.S.A. 59-1704 allows a double penalty to someone who is not acting as a court-appointed fiduciary HELD: Nothing in the plain language of K.S.A. 59-1704 limits application of the double penalty to circumstances where the decedent’s funds are taken by a court-appointed estate fiduciary. Under the circumstances of this case, where it is undisputed that Kelly converted the funds prior to her appointment as executor, the district court did not err by ordering Kelly to pay the double penalty. STATUTES: K.S.A. 59-1704


NO. 121,378–FEBRUARY 19, 2021 FACTS: Jury convicted Fraire of premeditated first-degree murder and criminal possession of a weapon by a convicted felon. On fourth day of trial a State witness wore clothing similar to that worn by Fraire on first day. Fraire unsuccessfully moved for mistrial, arguing this could prejudice jury’s assessment of identification testimony. During deliberations, jury requested a list of witnesses and a transcript of testimony. District court granted the first request and denied the second. And in discussing jury instructions, defense counsel objected to placing “guilty” option before “not guilty” on verdict form. On appeal Fraire claimed: (1) his right to a fair trial was prejudiced by similar apparel worn by him and the witness; (2) prosecutor’s opening statement improperly interjected his personal opinion by telling jury this is not a perfect world, the State’s case was not perfect, but State’s evidence would suffice to prove guilt beyond a reasonable doubt; (3) district court erred when it denied the blanket transcript request without seeking further information from the jury; (4) order of options on verdict from undermined Fraire’s right to the presumption of innocence; (5) cumulative error denied him a fair trial; and (5) district court erred in imposing lifetime postrelease supervision in sentence for the first-degree murder conviction. ISSUES: (1) Clothes Worn by Witness; (2) Prosecutorial Error; (3) Jury Transcript Request; (4) Verdict Form; (5) Cumulative Error; (6) Sentencing HELD: No evidence in record that anyone other than Fraire noticed the similarity in clothing. Fraire failed to demonstrate the existence of any prejudice, let alone prejudice sufficient to demonstrate the trial court abused its discretion in denying the motion for mistrial. Prosecutor’s comments did not constitute error. A prosecutor may comment on strength of State’s case if prosecutor informs jury that he or she believes the evidence suffices to prove the elements of a crime and prosecutor makes the statement merely directional, and not an expression of personal opinion. Fraire failed to preserve the transcript issue for appeal. Fraire’s counsel did not object to and even approved district court’s response to the jury’s request. Fraire’s verdict form claim is defeated by State v. Wesson, 247 Kan. 639 (1990), cert. denied 501 U.S. 1236 (1991), and State v. Wilkerson, 278 Kan. 147 (2004). Cumulative error doctrine inapplicable where no error exists. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence. The postrelease supervision portion of Fraire’s sentence is vacated.

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appellate decisions t STATUTES: K.S.A. 2020 Supp. 22-3420(d); K.S.A. 22-3423(1) (c), 60-2106(c) APPELLATE PROCEDURE—CONSTITUTIONAL LAW— CRIMINAL LAW—EVIDENCE—STATUTES STATE V. STOLL RENO DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 117,081–FEBRUARY 5, 2021 FACTS: Stoll convicted in 2008 of drug offense and ordered to register under Kansas Offender Registration Act (KORA) even though her crime was not added to statutory list of drug offenses requiring registration until 2011. Registration compliance until 2015 when she failed to register within three days of moving. In district court she admitted failure to register her new address within three days but argued the strict liability in K.S.A. 2015 Supp. 21- 5203(f) violated due process, and claimed substantial compliance with registration requirements. District court found Stoll guilty of failing to register. Stoll appealed and argued for first time that unavailability of a substantial compliance defense violated her rights to due process. Court of Appeals affirmed in unpublished opinion in which panel: (1) found substantial compliance was not an available defense to charge of failing to register; (2) declined to review claim that unavailability of that defense denied Stoll due process; (3) found Stoll lacked standing to challenge constitutionality of K.S.A. 2019 Supp. 21-5203(f) because strict liability nature of the statute had no effect on her; and (4) found Stoll could not challenge sufficiency of State’s evidence because she invited error by stipulating she was convicted of crime that required her to register. Stoll’s petition for review granted. ISSUES: (1) KORA - Substantial Compliance; (2) KORA - Due Process; (3) Standing for Constitutional Challenge; (4) Sufficiency of the Evidence HELD: While KORA may be remedial, substantial compliance is not an available defense to a charge for failure to register because relaxing the registration requirements would not accomplish purpose of the law. No error shown in panel’s refusal to review Stoll’s claim that unavailability of a substantial compliance defense denied herdue process. Panel’s conclusion that Stoll lacked standing to constitutionally challenge K.S.A. 2019 Supp. 21-5203(f) is affirmed. Because a party cannot concede or stipulate to an erroneous conclusion of law, panel erred in applying the invited error rule. Stoll’s argument fails on the merits, however, because she stipulated to having been convicted of an offense now defined in KORA’s definition of a drug offender. DISSENT: (Rosen, J.): Dissents based on his firm belief in 60 The Journal of the Kansas Bar Association

cited dissents that the oppressive and onerous requirements of offender registration are punitive, as demonstrated in this case. STATUTES: K.S.A. 2019 Supp. 22-4904; K.S.A. 2015 Supp. 215203(f), 22-4902, -4902(f), -4903(a); K.S.A. 2010 Supp. 8-1001(v); K.S.A. 2007 Supp. 8-1001(q); K.S.A. 21-2506, 60-1713 CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTIONS STATE V. COLSON OTTAWA DISTRICT COURT—AFFIRMED NO. 120,496–FEBRUARY 5, 2021 FACTS: Colson convicted on charges including felony murder. On appeal he challenged the sufficiency of the evidence supporting his convictions, arguing in part there was no evidence placing him in the victim’s home and jury had to stack inferences to find the mens rea elements for each of his crimes. For felony murder, he argued theft of victim’s gun was logically completed before the victim’s killing, and insufficient evidence established the thief was fleeing from the theft. Colson also claimed error in district court’s denial of the request for a lesser included offense instruction on voluntary manslaughter, citing in part victim’s intoxication. ISSUES: (1) Sufficiency of the Evidence; (2) Jury Instruction HELD: Sufficient evidence supported jury’s finding that Colson was the intruder who broke into victim’s home and killed him. Jury was not required to stack inferences in convicting Colson of each crime because separate and distinct evidence supported both inferences of his presence and of his culpable mental state. Also, sufficient evidence demonstrated the killing was either within the res gestae of theft of victim’s firearm or committed while thief was in flight. Jury instruction on voluntary manslaughter would have been legally appropriate but not factually appropriate in this case. Mere fact of a victim’s intoxication does not provide a presumption that victim was involved in an altercation at time of their death. STATUTES: K.S.A. 2019 Supp. 21-5403(a)(1), -5404 APPEALS—APPELLATE PROCEDURE—CRIMINAL PROCEDURE—MOTIONS—SENTENCING STATE V. FARMER MONTGOMERY DISTRICT COURT—AFFIRMED NO. 121,534–FEBRUARY 5, 2021 FACTS: Farmer convicted of offenses committed in 2002 including first-degree felony murder. Some ten years later he filed motions for resentencing alleging error in his presentencing report. He also argued his good behavior and

gainful employment in prison constituted substantial and compelling reasons for a departure sentence. District court resentenced Farmer based on a corrected criminal history but found no substantial and compelling reason for departure. Farmer appealed the denial of departure. He also claimed for first time that district court’s resentencing failed to notify him of duty to register under Kansas Offender Registration Act (KORA). ISSUES: (1) Motion for a Departure Sentence; (2) KORA Notice HELD: Kansas Sentencing Guidelines Act confers jurisdiction to review district court’s denial of Farmer’s request for departure from off-grid sentence for felony murder, but district court lacked discretion to depart from Farmer’s life sentence for felony murder. District court’s decision is affirmed as right for the wrong reason. Farmer failed to preserve claim of defective notice under KORA. Issue is deemed waived and abandoned for failure to adequately brief it. STATUTES: K.S.A. 2019 Supp. 21-6801 et seq., -6803(q), -6820(c)(1), 22-4901 et seq.; K.S.A. 2002 Supp. 213401(b), -4704, -4706(c), -4711 APPELLATE PROCEDURE—CRIMINAL LAW—FRAUD AND DECEIT—STATUTES STATE V. MORLEY SHAWNEE DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED; COURT OF APPEALS— AFFIRMED NO. 120,017–JANUARY 29, 2021 FACTS: State charged Morley in connection with high-risk investment scheme that cost four Kansas investors a combined loss of $845,000. He entered no contest plea to one count each of security fraud and acting as an unregistered agent fraud, with presumptive prison terms for each conviction. District court imposed concurrent prison terms, ordered $845,900 in restitution. Citing Morley’s no contest plea and Morley having a general plan to pay restitution the district court granted dispositional departure for probation. State appealed the departure order. Court of Appeals reversed, holding substantial competent evidence did not support Morley’s acceptance of responsibility, and that factor alone did not constitute a substantial and compelling reason for departure. 57 Kan. App.2d 155 (2019). Morley’s petition for review granted to clarify standard of appellate review when considering a district court’s decision to depart from presumptive imprisonment. ISSUES: Sentencing—Departure from Presumptive Prison Term HELD: Kansas caselaw is reviewed and fine-tuned. Abuse of

discretion standard applies when an appellate court considers if a sentencing court erred in granting or denying departure based on a nonstatutory mitigating factor. A three-step framework is stated. Here, panel correctly held (Step 1) that Morely’s acceptance of responsibility, as a matter of law, can be a mitigating factor supporting a sentencing departure. Panel erred (Step 2) when it improperly reweighed the evidence and substituted its own factual findings as to whether the record supported that nonstatutory factor’s existence. But notwithstanding its de novo review of the evidence, panel correctly held (Step 3) that the acceptance of responsibility factor by itself does not reasonably constitute a substantial and compelling reason to depart in Morley’s case from the statutory presumptive sentence. Panel’s judgment is affirmed. District court is reversed, Morely’s sentence is vacated, and case is remanded for resentencing. STATUTES: K.S.A. 2019 Supp. 17-12a402, -12a501, -12a508(a) (5), 21-6801 et seq., -6815(a), -6815(c); K.S.A. 2018 Supp. 216604(b)(1); K.S.A. 22-3209, -3209(2) CRIMINAL PROCEDURE—MOTIONS—STATUTES STATE V. GRIFFIN DOUGLAS DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED NO. 120,747–JANUARY 29, 2021 FACTS: While serving prison sentence on June 27, 2018, Griffin filed pro se request under Uniform Mandatory Disposition of Detainers Act (UMDDA) for disposition of Douglas County detainer. Certificate of service showed service on district court and district attorney. On July 18 district court received Secretary of Corrections document executed by Griffin and a prison clerk on July 6, and set trial date within the UMDDA 180-day time limit from July 18. Griffin filed motion to dismiss arguing the statutory time began with his substantial compliance with UMDDA on June 27 or July 6. District court denied the motion, finding the 180day clock began on July 18 when district court received the Secretary’s certification. Griffin convicted on his no contest plea and appealed, arguing district court lost jurisdiction under UMDDA because he had taken all steps within his power no later than July 6. Court of Appeals affirmed in unpublished opinion holding there was no UMDDA violation. Griffin’s petition for review granted. ISSUES: Uniform Mandatory Disposition of Detainers Act HELD: UMDDA is interpreted and applied. The UMDDA 180-day time limit did not begin until district court received Secretary’s certificate on July 18, and Griffin does not claim prison officials failed to promptly process the certification. Griffin’s attempt to stretch State v. Burnett, 297 Kan. 447 (2013), to establish a rule that an inmate’s substantial compliance

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appellate decisions t always starts the UMDDA’s 180-day time limit, is rejected. STATUTES: K.S.A. 2019 Supp. 22-4301 et seq., -4301(a), -4301(b), -4302, -4302(b), -4302(c), -4303(b)(1), 4303(b)(1)(C), -4303(b)(2), -4303(b)(3), -4303(b)(4) APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL LAW— CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTIONS STATE V. COBLE RENO DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED NO. 118,382–JANUARY 15, 2021 FACTS: Coble conducted multiple exothermic experiments in his 12th-floor apartment. One experiment on June 21, 2016, triggered the fire alarm. In response, fire department recognized previous burn evidence in other locations. State ultimately charged Coble with three indistinguishable counts of aggravated arson based on evidence of three incendiary fires occurring on or before June 21, 2016. Identical jury instructions also failed to designate the specific location for each count. District court referred jury to the instructions in response to jury’s request for clarification. Jury convicted on one count and acquitted on the remaining two. Coble appealed arguing in part the nondescript jury instructions made jury’s outcome hopelessly ambiguous and prevented meaningful appellate review of sufficiency of the evidence of the conviction. Court of Appeals affirmed in unpublished opinion finding Coble invited the ambiguity by objecting to State’s proposed clarifying instruction, and finding no jury confusion because parties’ closing arguments made clear the guilty verdict was based on the June 21 incident. Coble’s petition for review granted. ISSUES: (1) Invited error; (2) meaningful and effective appellate review HELD: Panel’s holding that Coble invited the error he complains of is plainly wrong. Error advanced on appeal would not have been averted by State’s proposed unanimity instruction. No necessary link exists between Coble’s advocacy and the alleged error in his appeal. The conviction is reversed, recognizing double jeopardy issues may arise on remand if prosecution continues. Panel’s conclusion about jury’s understanding of the sequencing of the counts in the instructions and verdict form is unsupported on the record. On facts and circumstances of this case, including arguable evidence insufficiency questions on some or all the convictions, a reviewing court’s inability to reliably associate particular conduct with the count of conviction frustrates appellate review and adversely implicates Coble’s rights to due process. 62 The Journal of the Kansas Bar Association

STATUTES: K.S.A. 2019 Supp. 21-5812; K.S.A. 22-3421 CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTION—STATUTES STATE V. CROSBY SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART NO. 119,824–JANUARY 15, 2021 FACTS: For an incident in October 2015, the State charged Crosby with first-degree murder, distribution of a controlled substance, attempted aggravated robbery, and criminal possession of a firearm. For an incident in November 2016, the State charged him with attempted aggravated robbery, aggravated burglary, attempted murder in second degree, criminal discharge of a firearm, aggravated battery, and criminal possession of a weapon. Finding the evidence established similar crimes where Crosby lured individuals into a drug deal to rob them, and noting “joinder is the rule rather than the exception,” the district court denied Crosby’s motion to sever the charges. Jury convicted on all consolidated charges. Crosby appealed claiming: (1) district court erred by consolidating his cases; 1. insufficient evidence supported his distribution conviction, (3) instructions on the robbery and felony murder charges were overbroad because they failed to include specific facts alleged in the complaint, and instruction on charge of criminal possession of a firearm was not factually appropriate; and (4) cumulative error denied him a fair trial. ISSUES: (1) Joinder of cases; (2) sufficiency of the evidence— distribution; (3) jury instructions; (4) cumulative error HELD: District court’s order of consolidation is affirmed. Crosby’s claim that the one-year difference makes the crimes dissimilar is unpersuasive. Crosby filed to establish district court abused its discretion in consolidating the two cases for trial after finding the crimes were of the same or similar character. Insufficient evidence supports the distribution charge. To convict a defendant of distribution of a controlled substance under K.S.A. 2019 Supp. 21-5705(a), the State must present sufficient evidence of possession as a necessary part of the crime. Evidence that Crosby ever possessed the drugs in the October 2015 incident is insufficient. Instructions on felony murder, attempted aggravated robbery, and criminal possession of a firearm associated with the November 2016 charge were legally appropriate. An instruction that omits specific facts alleged in the complaint does not expand the elements of a crime, and elements required by the instructions accurately matched the statutory language for the charged offenses in this case. Instruction on the unlawful possession of a firearm charge associated with the October 2015 shooting

was factually appropriate on evidence viewed in light most favorable to the State. No cumulative error on a finding of only one error in this case. STATUTES: K.S.A. 2019 Supp. 21-5701(d), -5701(q), -5705, -5705(a); K.S.A. 2015 Supp. 21-5705; K.S.A. 223202(1), -3203 APPELLATE PROCEDURE—CRIMINAL LAW— CRIMINAL PROCEDURE—EVIDENCE —JURY INSTRUCTIONS—MOTIONS STATE V. PHILLIPS SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,075–JANUARY 15, 2021 FACTS: Phillips fired shots from porch of home killing his brother and injuring another. Claiming he shot in self-defense, Phillips filed motion for immunity from prosecution under K.S.A. 2019 Supp. 21-5231. District court denied the motion after conducting full evidentiary hearing, listing several material questions of fact in dispute, and concluding this factual dispute precluded immunity. Phillips was convicted of first-degree murder and aggravated battery. District court denied Phillips’ pro se motion for new trial alleging ineffective assistance of counsel. On appeal, Phillips claimed district court erred in denying: (1) the immunity motion; (2) the motion for a new trial; and 2. Phillips’ request for a jury instruction on a lesser included offense to aggravated battery. ISSUES: (1) Immunity motion; (2) motion for new trial; (3) jury instruction—lesser included offense HELD: District court erred in denying Phillips’ motion for immunity. District court failed to apply the controlling legal standard in State v. Hardy, 305 Kan. 1001 (2017). It did not resolve disputed issues of fact relevant to the probable cause

determination, nor did it conclude the State had shown probable cause that Phillips’ use of force was not statutorily justified under totality of the circumstances. A statutory harmless error analysis is not appropriate where the selfdefense evidence presented at the immunity hearing differed in substance and scope from evidence presented at trial, the verdict itself is not in question, and the alleged injury at issue relates solely to Phillips’ statutory right to immunity and freedom from continued prosecution. Given the unique set of circumstances, Kansas Supreme Court conducts a probable cause assessment based on the current record, finding State showed probable cause under the totality of the circumstances that Phillips initially provoked the use of force making selfdefense immunity unavailable under K.S.A. 2019 Supp. 21-5226(b) and (c), and Phillips’ use of deadly force was not justified under the two-part subjective and objective test under K.S.A. 2019 Supp. 21-5222. District court properly denied Phillips’ request for a lesser included offense instruction to the aggravated battery charge. Contrary to district court’s rationale and State’s modified argument on appeal, the requested instruction was legally appropriate but it was not factually appropriate. District court did not err in denying Phillips’ motion for a new trial. Even if counsel’s deficient performance in not objecting to or not seeking clarification of the immunity ruling is assumed, Phillips cannot establish prejudice. Phillips waived right to be present at hearing where district court granted trial continuance for defense preparation, and failed to show prejudice. STATUTES: K.S.A. 2019 Supp. 21-5222, -5222(b), -5226, -5226(b), -5226(c), -5231, -5413(b)(1)(A), 5413(b)(1)(C); K.S.A. 2017 Supp. 21-5413(b)(1), -5413(b)(1)(A), -5413(b)(1)(B), -5413(b)(1)(C); K.S.A. 213414(a)(1), 60-409(a)

Kansas Court of Appeals CIVIL HABEAS CORPUS; VENUE JOHNSON V. ZMUDA SHAWNEE DISTRICT COURT – REVERSED AND REMANDED NO. 122,700–JANUARY 29, 2021 FACTS: In September 2019, Johnson filed a K.S.A. 60-1501 petition in Shawnee County challenging the results of a disciplinary action. The infraction and subsequent disciplinary

proceeding occurred at the Winfield Correctional Facility, where Johnson was confined. By the time he filed his petition Johnson had been transferred to the Hutchinson Correctional Facility. The Department of Corrections sought dismissal, arguing that Johnson’s petition was filed in the wrong county, since he was confined in Reno County but filed the petition in Shawnee County. Johnson argued that the appropriate remedy was a transfer of venue, not dismissal. But the district court agreed with KDOC that dismissal of the petition was the u appropriate remedy. Johnson appealed. | March/April 2021 63

appellate decisions t ISSUES: (1) Proper remedy for filing in the wrong county HELD: A K.S.A. 60-1501 petition must be filed in the county of confinement. In this case, that county was Reno since Johnson was confined at the Hutchinson facility. Historically, Court of Appeals panels have split over the question of whether to transfer or dismiss a 60-1501 petition that is filed in the wrong county. Recently, though, the court has instructed district courts to transfer the case to the proper county. This is appropriate because the real issue is not subject matter jurisdiction but venue. There is no statutory bar to transferring a case to the appropriate county. Johnson’s petition must be revived and the case transferred to Reno County. STATUTES: K.S.A. 2019 Supp. 60-1501, -1501(a), -1501(b); K.S.A. 60-611 INSURANCE—JUDGMENTS GRUBER V. ESTATE OF MARSHALL RILEY DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED NO. 120,513–JANUARY 22, 2021 FACTS: In 2013, Ronald Marshall was piloting a small plane when it crashed, killing Marshall and his passenger, Christopher Gruber. Marshall was insured by USAIG and his policy included voluntary settlement coverage which allowed the insurer to pay a passenger’s estate the policy limit of $100,000 in exchange for a release of liability. USAIG offered that coverage to Gruber’s estate, but it waited for more than a year after the crash to do so, after investigators concluded the crash was caused by Marshall losing control of the plane. Gruber’s estate rejected the settlement and filed a wrongful death lawsuit against Marshall’s estate. Marshall’s estate believed USAIG breached the insurance contract by delaying a settlement offer to Gruber’s estate. The two estates agreed that Marshall would assign to Gruber its contract claim against USAIG while admitting fault for the crash. In exchange, Gruber’s estate agreed not to collect from Marshall’s estate any judgment entered against Marshall. The district court heard the Gruber estate’s wrongful death action against Marshall and found in the Gruber estate’s favor, awarding damages over $11 million. USAIG did not participate in the trial. But the district court found that USAIG both negligently and in bad faith breached its insurance contract with Marshall by not making a timely voluntary settlement offer and that this breach caused the entry of the $11 million judgment, making USAIG liable for the entire judgment. The district court ordered USAIG to pay $11 million rather than the policy limits of $100,000. USAIG appeals that judgment and Gruber cross-appeals the district court’s failure to award prejudgment interest and attorney fees. ISSUES: (1) Whether conditions were met to allow voluntary 64 The Journal of the Kansas Bar Association

settlement coverage; (2) whether USAIG should be required to pay interest on the judgment; (3) payment of attorney fees HELD: The voluntary settlement coverage in Marshall’s insurance policy had two conditions precedent: a (1) request by a policyholder to extend coverage (2) within one year of the occurrence. There is substantial evidence to support the district court’s finding that a policyholder asked that coverage be offered to Gruber’s estate within the one-year timeframe. USAIG acted negligently and in bad faith when it failed to offer this voluntary settlement as required by Marshall’s policy. This breach of contract led to an excess judgment against Marshall’s estate, and the district court did not err by holding that this excess judgment against the Marshall estate could be enforced against USAIG. The damage amount was fixed when the district court entered judgment against Marshall’s estate. Interest continues to accrue until the judgment is paid, and the district court erred by denying the Gruber estate’s motion for interest. The district court did not make adequate findings of fact regarding whether the property loss in this case could entitle the Gruber estate to attorney fees. The case must be remanded for additional findings of fact. STATUTES: K.S.A. 16-201, 40-908 STATUTES OF LIMITATIONS—STATUTES OF REPOSE JOHN DOE H.B. V. M.J. WYANDOTTE DISTRICT COURT—AFFIRMED AND REMANDED NO. 121,768–JANUARY 15, 2021 FACTS: H.B. filed suit on August 31, 2017, against M.J., a former Catholic priest. H.B. claimed that M.J. engaged in a pattern of sexual abuse across several parishes in northeast Kansas and that he specifically sexually abused H.B. multiple times when he was between the ages of nine and 12. H.B. also named as a defendant the Roman Catholic Archdiocese of Kansas City, Kansas, alleging that it failed to train and supervise M.J. and attempted to cover up the misconduct. In his petition, H.B. claimed that the abuse was so traumatic that he repressed all memories of it until late fall 2015, when news reports of other abuse by priests triggered his memory to return. When filing suit, H.B. relied on the extended statute of limitations found at K.S.A. 2019 Supp. 60-523, which allows for suits to be initiated up to 3 years after a plaintiff discovers that injuries were caused by childhood sexual abuse. This extended statute of limitations applies to claims of childhood sexual abuse which were alleged to occur after July 1, 1984. The Archdiocese and M.J. moved to dismiss H.B.’s suit, claiming that his abuse ended in April or May of 1984, outside of the period covered by K.S.A. 2019 Supp. 60-523. The district court ordered limited discovery to provide more certainty about the timeframe of H.B.’s abuse. After reviewing that evidence, the district court denied the defendants’ motion to dismiss, claiming there was a genuine factual dispute about the last date of the alleged

abuse and that the issue of the last date of abuse was a question of fact for a jury. The district court certified the Defendants’ arguments as appropriate for civil interlocutory review, and the Court of Appeals granted the Defendant’s application for civil interlocutory appeal. ISSUES: (1) Whether K.S.A. 2019 Supp. 60-523 only applies to perpetrators; (2) existence of disputed factual claims HELD: The plain language of K.S.A. 2019 Supp. 60-523 is not limited to actions of childhood sexual abuse; it extends to recovery of damages suffered as a result of that abuse. This broad language applies to nonperpetrator- defendants such as the Archdiocese. If H.B.’s claims survive the statute of repose, the Archdiocese is an appropriate defendant. There are unresolved factual disputes regarding the last date that H.B. was sexually abused. The existence of these disputes renders summary judgment inappropriate. When giving H.B. the benefit of the doubt—as the court was required to do—his abuse could have occurred as late as August 1984, within the statute of repose. Similarly, there is evidence to prove that H.B. did not recover the memories of his sexual abuse until after August 31, 2014. STATUTES: K.S.A. 2019 Supp. 60-212(c), -256, -523, -523(a), -523(b), -523(d); K.S.A. 60-515, -515(a)

CRIMINAL APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE—STATUTES STATE V. BIRD SHAWNEE DISTRICT COURT—REVERSED IN PART, DISMISSED IN PART NO. 120,816–FEBRUARY 19, 2021 FACTS: Grand jury indicted Bird on charges of aggravated indecent liberties with a child (Count I) and aggravated indecent solicitation of a child (Count 2). Two weeks before trial Bird moved to dismiss the indictment arguing the grand jury procedure was defective. A week later he filed a notice of defect in Count 2, arguing it incorrectly stated the mens rea as “knowing” instead of “intentional.” District court dismissed Count 2 and then granted State’s motion to dismiss Count 1 without prejudice. State appealed the dismissal of the solicitation charge. Bird filed cross-appeal, arguing the entire indictment should have been dismissed because grand jury violated his due process rights when it considered hearsay evidence. ISSUES: (1) Appellate Jurisdiction - State’s Appeal; (2) Dismissal of Solicitation Charge; (3) Appellate Jurisdiction - Bird’s Cross-Appeal

HELD: There is jurisdiction to consider State’s appeal. The three types of charging documents and their role in Kansas criminal procedure are examined. State can appeal from the partial dismissal of charges in an indictment when the remaining charges are no longer pending before the district court. While Kansas law prevents a prosecutor from substantively amending an indictment, courts have traditionally recognized a county or district attorney’s control of a prosecution includes the authority to dismiss pending charges with district court’s consent. District court erred in dismissing Count 2 of the indictment. State’s argument that Bird’s notice of defect was an untimely motion to dismiss is rejected. Bird argued the indictment failed to charge him with the solicitation crime because it included a lower mental culpability element than required. But an insufficient charging document does not divest a court of subject matter jurisdiction. The question is whether proof of facts alleged in the document would produce sufficient evidence for a rational fact-finder to conclude beyond a reasonable doubt that Bird committed the solicitation offense. Here the indictment charged Bird in the language of the statute, and sufficient evidence supporting those factual allegations could lead to a guilty verdict. There is no jurisdiction over Bird’s cross-appeal. District court never issued a formal decision on Bird’s motion to dismiss the indictment based on the alleged violation of due process. Even if implicit denial of the motion is assumed, there is no final judgment for purposes of an appeal where Bird has not been convicted or sentenced for any offense. STATUTES: K.S.A. 2019 Supp. 21-5202, -5202(a), -5202(d), -5202(e), -5202(h), -5203, -5205(b), -5506(b)(3)(A), 5508(b)(1), -5508(b)(2), 22-2202(h), -2202(l), -2302(a), -2902(1), -3001 et seq., -3208(3), -3601(a), -3602(a), 3603; K.S.A. 2017 Supp. 21-5202(e), -5506(b), -5508(b), 223001(a), -3001(b), -3015(b)(2), -3602(b)(1); K.S.A. 2014 Supp. 22-3001(b); K.S.A. 2013 Supp. 22-3001(b), -3007(b); K.S.A. 19-702(a), 21-3201, -3201(b), -3511(a); 22-2301(1)-(2), -2303, -2303(1)-(2), -2902, -3001(1)-(2), -3007, -3201(b), -3201(e), 22a-104(a) CRIMINAL LAW—MOTIONS—IMMUNITY—STATUTES STATE V. DUKES SEDGWICK DISTRICT COURT—AFFIRMED NO. 121,790–FEBRUARY 12, 2021 FACTS: State charged Dukes with voluntary manslaughter, alleging he acted with honest but unreasonable belief that deadly force was justified. Claiming immunity, Dukes moved to dismiss the charge. District court held evidentiary hearing and denied the motion, finding Dukes had a subjective belief the victim posed a danger to Dukes and his passenger, but State met probable cause burden of showing the use of deadly force may not have been justified. Dukes filed motion to u | March/April 2021 65

appellate decisions t reconsider arguing State was required to establish probable cause a reasonable person would not have believed deadly force was necessary. District court agreed and dismissed the case. State appealed. ISSUES: Use-of-Force Immunity HELD: District court’s conclusion to grant Dukes’ request for immunity under K.S.A. 2020 Supp. 21-5231(a) is affirmed. District court set forth the correct legal standard and correctly applied it to facts in this case. Dukes faced situation where an aggressive man charged his vehicle and threatened him. Dukes used deadly force only when the man yelled “I’ve got something for you” and darted to retrieve loaded semiautomatic weapon close to hand. District court did not find State’s initial-aggressor theory persuasive. Unnecessary to resolve conflict as to whether victim had a gun when he first approached Dukes’ truck because Dukes’ actions were justified in light of victim’s subsequent conduct. STATUTES: K.S.A. 2020 Supp. 21-5220 et seq., -5221(a)(2), -5222(b), -5226, -5231, -5231(a); K.S.A. 2019 Supp. 21-5231 APPEALS—APPELLATE PROCEDURE— CONSTITUTIONAL LAW—CRIMINAL LAW—STATUTES STATE V. MCKINNEY JACKSON DISTRICT COURT—AFFIRMED NO. 121,150–JANUARY 29, 2021 FACTS: McKinney accidentally shot his stepbrother in the head in 2018. State filed charges of reckless aggravated battery and criminal use of a weapon in violation of K.S.A. 2018 Supp. 21-6301(a)(13) which prohibits possession of a firearm by a mentally ill person. At trial State admitted 2009 and 2010 orders of protective custody which found McKinney to be mentally ill and committed him to a state hospital. Jury convicted him as charged. McKinney appealed claiming insufficient evidence supported the aggravated battery conviction because State failed to to show he consciously disregarded a substantial risk. He also challenged the constitutionality of the statute claiming it violates the Second Amendment because it unconstitutionally functions as a lifetime ban on possession of a firearm for all persons who at any time have been declared a mentally ill person, with no time limitation or procedural means for review. He also claimed the statute is facially unconstitutional under section 4 of the Kansas Constitution Bill of Rights, as amended in 2010, which he argues provides broader protection than the Second Amendment and prohibits any restriction of possession of a firearm. ISSUES: (1) Sufficiency of the Evidence, (2) Constitutionality of K.S.A. 2020 Supp. 21-6301(a)(13) HELD: Circumstantial evidence in this case, viewed in light most favorable to State, was sufficient for jury to reasonably 66 The Journal of the Kansas Bar Association

infer that McKinney acted recklessly and consciously disregarded a substantial risk when he brought a loaded gun into the house, was agitated and angry, was drinking and off his medication, and pointed the gun at a common wall with stepbrother on the other side. Federal and state constitutional claims raised for first time are considered to prevent denial of a fundamental right. Under arguments presented by McKinney in this case, K.S.A. 2020 Supp. 21-6301(a)(13) does not violate either the Second Amendment or section 4 of Kansas Constitution Bill of Rights. There is a procedure for a person to seek review of their classification as a mentally ill person prohibited from possessing a firearm, and a person discharged from care and commitment may petition for restoration. McKinney advances no persuasive argument or authority to support his contention that section 4 should be interpreted differently than the Second Amendment, and he abandoned by inadequately briefing his assertion that section 4 prohibits any restriction on the possession of a firearm. STATUTES: K.S.A. 2020 Supp. 21-5202(j), -5413(b)(2)(A) -6301(a)(13), -6301(k); K.S.A. 75-7c26(a), -7c26(c) APPELLATE PROCEDURE—CRIMINAL LAW— STATUTES—WORDS AND PHRASES STATE V. BAUMGARNER SUMNER DISTRICT COURT—CONVICTION REVERSED AND SENTENCE VACATED NO. 121,092–JANUARY 22, 2021 FACTS: Jury convicted Baumgarner of possession of a firearm by a person who is or has been a mentally ill person subject to involuntary commitment for care and treatment. K.S.A. 2019 Supp. 21-6301(a)(13). Baumgarner appealed, claiming insufficient evidence supported the conviction because State’s only evidence of mental illness was a civil-commitment adjudication two years earlier in which district court found clear and convincing evidence that Baumgarner was a mentally ill person subject to involuntary commitment. Additional briefing ordered on the mental health element in the criminal statute. ISSUES: (1) Sufficiency of the evidence—mental health element in K.S.A. 2019 Supp. 21-6301(a)(13) HELD: K.S.A. 2019 Supp. 21-6301(a)(13) is interpreted. Legislature chose mental status of the defendant rather than his or her previous adjudication as an element of the criminal offense. To convict, the State must prove beyond a reasonable doubt that a defendant has or had a mental illness that would permit his or her involuntary commitment under the Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-2945 et seq. Because the “clear and convincing standard” for adjudication in a civil-commitment proceeding is less rigorous than proof

appellate practice reminders

“beyond a reasonable doubt,” the State did not submit sufficient evidence to prove an essential element of the criminal charge. Baumgarner’s conviction is reversed, his sentence is vacated, and judgment of acquittal is entered. STATUTES: K.S.A. 2019 Supp. 21-5111(v), -5413(b), -6301, 6301(a)(13), -6301(a)(18), -6301(k), -6304, 592946, -2946(e), -2946(f)(1)-(3), -2948, -2948(c), -2966, -2966(a), -2967(a) ; K.S.A. 2017 Supp. 21-5904, 6301(a)(13); K.S.A. 59-2945 et seq., -2957, -2965, 60-404, 757c26, -7c26(c)

CONCURRENCE: (Warner, J.): Joins the court’s explanation of its decision and judgment, but writes separately to offer a slightly different rationale citing statutory definitions of a “mentally ill person” and “a mentally ill person subject to involuntary commitment for care and treatment.” Legislature is free to revisit language in K.S.A. 2019 Supp. 21-6301(a)(13), but as currently written the journal entry memorializing the outcome in Baumgarner’s 2015 civil-commitment proceeding—without more—is insufficient evidence to prove beyond a reasonable doubt that he “is or has been a mentally ill person subject to involuntary commitment for care and treatment, as defined in K.S.A. 59-2946.” u

You Gotta “SHOW UP”


how-Up” has a couple of meanings. In the CSI universe (insert your favorite CSI locale), a “showup” usually occurs immediately or shortly after a crime has occurred. It happens when law enforcement brings a person to the scene of a recent crime to see if a witness will identify the person as the perpetrator. Read the arguments for and against “show-ups” in Stovall v. Denno, 388 U.S. 293 (1967).

number of dockets each year and while we may try to work around a conflict for you, the following weeks in 2021 should be given priority for the appellate courts if you have an appeal that could be ready for argument.

In our household, to “show-up” means to be present and ready to give 100%. Even in the pandemic, the appellate courts are striving to keep cases moving through the system and get them to disposition. Attorneys who have cases on appeal need to be ready to “show-up” for the docket weeks of the Supreme Court and Court of Appeals whether it is by Zoom meeting or in-person hearing. You need to keep these dates within your sights and on your calendars. We are not the district courts. The appellate courts have a limited

Court of Appeals:

Supreme Court:

May 24-28; September 13-17; October 25-29; November 9 (Possible Travel Docket); December 13-16. April 5-8; May 10-13; June 14-17; July 12-15; August 9-12; September 9-10; October 12-15; November 15-18. Calendar these dates and be ready to “Show-Up” for your next argument. 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. u

For questions about these or other appellate procedures and practices, the appellate clerk’s office is only a phone call (785) 296-3229 or an email ( away. Douglas T. Shima, Clerk of the Appellate Courts. | March/April 2021 67

classified advertisements

POSITIONS AVAILABLE 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 ( Growing investment company has an opening for an in-house counsel with extensive business and litigation experience; send resume to: INTRUST Bank N.A. seeks qualified attorneys for two open roles: Senior Associate Counsel—Lending, and Associate Counsel. Both roles require at least 5 – 10 years of relevant experience and admission to the Kansas Bar. Senior Associate Counsel—Lending provides legal advice on diverse topics to the lending areas of the bank, including review and documentation of commercial loan transactions. Associate Counsel role supports bank operations including deposit and payment products and services, consumer and business banking, treasury management, remote banking, deposit operations and payment system operations. Visit 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 consideration to the attn. of Alisia at or via fax (785) 233-2384. Wanted. Lawyer with a minimum of 3 years’ experience practice in estate and business law with a desire to become the owner of a central Kansas firm that has a very predictable gross revenue. The firm limits its practice to estate planning, probate, trust settlement and business planning. Please send your resume to In-House Counsel. Well established business in Kansas has two openings for in-house counsel. One for their Topeka operation and one for their Wichita operation. Either of these positions would require an experienced candidate that is familiar with litigation as well as a business lawyer. This is an excellent opportunity for growth within a company. Send resume and salary history to Hampton & Royce, L.C. Salina, Kansas is seeking to hire an attorney with 3-12 years of experience. Hampton & Royce is recognized as one of the region’s oldest and most premier 68 The Journal of the Kansas Bar Association

law firms with practice areas in estate and tax planning; probate; business and corporate law; real estate and contract law; domestic law; banking law; and civil litigation. The firm offers competitive pay, and the opportunity to live and work in Salina, Kansas which is a thriving community in Central, Kansas. If you are interested, please send your resume and accompanying cover letter to Hampton & Royce, L.C., attention Brian Wood, 119 West Iron, 9th Floor, Salina, Kansas 67401 or Lawyers Needed. The practicing Bar of Harper County Kansas seeks new attorneys for the area to include someone to serve as county attorney in the near future. Anthony, Kansas is the county seat and is located on the Oklahoma border in south-central Kansas. Opportunities for general practice, criminal defense and prosecution exist. Current and former law office spaces are available. Enjoy small community life (county population 5,500) and make a life not just a living. Contact: Richard Raleigh, (620) 842-6070, rraleigh@; David M. Hall, (620) 842-5525,; Jim Forsyth, (620) 842-5101,

ATTORNEY SERVICES Contract brief and motion writing; research. Experienced attorney with superior writing skills, successful track record, and excellent work history (small and large firm), available to assist on a contract basis preparing dispositive motions, other motions, trial court and appellate briefs, pleadings, probate/estate planning documents; also available to assist with legal research. Quality work; flexible. Experience includes litigation, wills/trusts, probate, debt collection, bankruptcy, contracts, domestic. Contact Paula McMullen at, or (913) 940-4521 to discuss. 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 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

Social Security Disability Services. Your clients dealing with serious injuries or illness may have a claim for Social Security disability. We have lots of experience, get good results, and we are ready to help and to augment your reputation. If you have questions, let’s talk. Our practice is limited to Social Security disability. We can travel anywhere in Kansas, Missouri, Nebraska or Colorado. Contact: Pat Donahue at Western Law (785) 832-8521 or 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 Manhattan Office Space for Rent. Located in the Colony Square office building in downtown Manhattan. One minute from the Riley County Courthouse. The available space consists of two offices and an area for a secretary/paralegal. Large reception area and kitchen. High speed internet. Open to either office sharing or “Of Counsel” arrangement. For more information, all (785) 539-9300 or email to Office for Lease, Corporate Woods. Approximately 300 sf office space available within a working law firm. Convenient location to meet with clients, with access to conference rooms if needed. Comes with all the amenities of a working law firm; witnesses, notaries, fax/copy machine, internet, phone, etc. On the top floor of a building with a fantastic view.

Please contact Tim Winkler at (913) 890-4428 or Overland Park – Offices for Rent. Law offices in Old Downtown Overland Park in remodeled historic building. Includes: free parking, reception area, kitchen, conference room, fax, scanner, copier, telephones, voicemail and high-speed internet access. The offices are walking distance of coffee shops, restaurants and retail stores. Fourteen highly respected attorneys in an office-sharing/networking arrangement. For more information, please contact James Shetlar at (913) 648-3220 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: WYCO Office Suite Available at 134 N. Nettleton, Bonner Springs, KS 66012. 1100-2000 sf. Waiting area, receptionist area, break room, conference room, large and small offices, private parking, ADA Accessible. 1.25/sf/mo. Utilities included. For more information, call (913) 422-1620. u

Interested in placing a Classified Ad in the KBA Journal? COST: FREE for KBA Members $25/publication for non-members Word count: 75-100 words (Editor reserves the right to edit for space.) Simply email your preferred copy to: | March/April 2021 69

advertisers index

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