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  • 16 Sep 2020 9:20 AM | Amanda Kohlman (Administrator)

    Chief justice signs new administrative order continuing suspension of deadlines, time limitations

     

    TOPEKA—Chief Justice Marla Luckert issued a new administrative order today continuing to suspend statutes of limitation, statutory time standards, deadlines, and time limitations started under earlier orders in response to the COVID-19 pandemic.

    Luckert's action follows the State Finance Council's decision last week to extend the COVID-19 state of disaster emergency.

    Statutory speedy trial provisions in district courts

    Administrative Order 2020-PR-101 continues the suspension of statutory deadlines and time limitations to bring a defendant to trial in district court.

    Judicial proceedings

    The order also continues the suspension of statutes of limitations, statutory time standards, or deadlines that apply to conducting or processing judicial proceedings.

    Under the order, no action may be dismissed for lack of prosecution or failure to meet a deadline, except when a judge, appellate judicial officer, or hearing officer exempts a case from the suspension.

    Municipal courts

    The order also continues the suspension of certain deadlines and time standards, including applicable statutory speedy trial provisions, for any municipal court closed or continuing trials because of COVID-19. The suspensions remain in effect until the court reopens and can reasonably place the case on its calendar, or until further order.

    Duration of today's order

    Today's order will remain in effect until further order or it expires under provisions in 2020 House Substitute for Senate Bill 102 as amended by 2020 Spec. Sess. House Bill 2016.

    Case processing

    Courts continue to process cases while statutes of limitation and statutory time standards or deadlines have been suspended. Judges hear many types of proceedings using videoconferencing technology, greatly reducing the need for in-person hearings. In-person hearings, including jury trials, are also taking place with physical distancing and other precautions.

    "Despite great strides by judges and court employees to overcome obstacles presented by the pandemic, public health concerns continue to create barriers to access to justice for many Kansans," Luckert said. "These barriers create a substantial risk that Kansans could forfeit claims, causes of action, or legal rights if time requirements are reinstated."

    Court operations during pandemic

    For all court actions related to the pandemic, visit 
    Kansas courts response to COVID-19.


  • 14 Sep 2020 10:03 AM | Amanda Kohlman (Administrator)

    The Kansas Supreme Court is accepting public comment on proposed changes to rules affecting attorney discipline and the Lawyers' Fund for Client Protection. One proposal has a 60-day comment period, and the other a 30-day comment period.

    Proposed Rules 200–240: Rules Relating to Discipline of Attorneys

    The changes in proposed Rules 200–240: Rules Relating to Discipline of Attorneys are extensive and overhaul the existing rules to align with other Supreme Court rules, increase efficiency, clarify the disciplinary process, and codify existing practices. 

    The proposed changes create separate rules for each subject and reorder the rules to better reflect how a complaint moves through the attorney disciplinary process.

    New provisions in the proposed rules include:

    • definitions for greater clarity;

    • new deadlines for the disciplinary administrator and the respondent to promote an efficient hearing process;

    • a clear process for respondents to get subpoenas to compel witnesses to testify at disciplinary hearings;

    • expanded use of depositions in attorney disciplinary cases;

    • a procedure for parties, by agreement, to submit a disciplinary case directly to the Supreme Court and forgo a hearing before the Kansas Board for Discipline of Attorneys; and

    • a provision that addresses using expert witnesses in disciplinary proceedings.

    The proposed changes also move the Kansas Rules of Professional Conduct from Rule 226 to Rule 240. There are no changes to this rule other than the rule number.

    You may make comment by email to SCRulespubliccomment@kscourts.org until noon Tuesday, November 10. The subject line must read "Rules Relating to Discipline of Attorneys."

    Proposed Rule 241: Rule Relating to the Lawyers' Fund for Client Protection

    The proposed Rule 241: Rule Relating to the Lawyers' Fund for Client Protection moves current Rule 227 to Rule 241 and amends the rule.

    Proposed changes fall into three categories:

    • amendments to transfer administrative duties from the Office of the Clerk of the Appellate Courts to the Office of the Disciplinary Administrator;
    • extensive renumbering, restyling, and retooling amendments to align this rule with other Supreme Court rules; and
    • minor amendments for clarity.

    The proposed changes do not substantively affect the consideration of claims made to the Client Protection Fund.

    Comment may be made by email to SCRulespubliccomment@kscourts.org until noon Friday, October 9, 2020. The subject line must read "Rule 241."


  • 11 Sep 2020 9:43 AM | Amanda Kohlman (Administrator)

    The Kansas Supreme Court issued the following published decisions September 11, 2020

    Appeal No. 115,184: Ziad K. Khalil-Alsalaami v. State of Kansas

    Archived oral argument

    The Supreme Court granted Khalil-Alsalaami's motion for post-conviction relief following his Riley County convictions for two counts of aggravated criminal sodomy. Khalil-Alsalaami argued his convictions must be reversed because his trial counsel was ineffective and therefore violated his rights under the Sixth Amendment to the U.S. Constitution. Specifically, Khalil-Alsalaami argued his trial attorneys were ineffective because they stipulated that a confession made by Khalil-Alsalaami during police interrogation was voluntary. During a hearing on Khalil-Alsalaami's ineffective assistance claims before the district court, his trial counsel acknowledged that three of the five recognized voluntariness factors weighed in favor of suppression, but contended they nevertheless did not challenge the admissibility as a matter of trial strategy. The Supreme Court held such a strategy constituted ineffective assistance of counsel because it required them to cede, perhaps unnecessarily, one of the major pillars of the State's case against Khalil-Alsalaami. Finally, the Supreme Court held there was a reasonable probability that, but for counsel's stipulation to the confession, Khalil-Alsalaami may have been acquitted. Accordingly, the Supreme Court reversed Khalil-Alsalaami's convictions and remanded the case to Riley County District Court. Justice Carol Beier, joined by Senior Judge Patrick McAnany, concurred. They would have held there was a second error of constitutional magnitude, because trial counsel did not protect Khalil-Alsalaami's statutory right to have an interpreter to assist him. Justice Dan Biles, joined by Justice Caleb Stegall, dissented.

    Appeal No. 118,712: Fairfax Portfolio LLC v. Carojoto LLC et al.

    Summary calendar; no oral argument

    The Supreme Court affirmed the judgment of the Court of Appeals reversing Wyandotte County District Court's decision regarding the enforceability of a mortgage clause that grants mortgagee or lender the right to immediate and exclusive possession of the mortgaged property upon the event of the mortgagor or borrower's future default. The Supreme Court held there is no support in the law to rely on such a provision, and absent either express or implied consent after default, the mortgagor of real property may retain possession.

    Appeal No. 118,894: State of Kansas v. Michael Alan Keyes

    Archived oral argument

    Keyes was convicted of first-degree premeditated murder in Grant County. On direct appeal to the Supreme Court, Keyes challenged his conviction, claiming the district court erred in refusing to give his requested jury instructions of self-defense and involuntary manslaughter. In an opinion written by Justice Caleb Stegall, the Supreme Court held the district court erred in failing to give a self-defense instruction. Because the Supreme Court was not convinced there was no reasonable probability the error affected the outcome of the trial, it reversed Keyes' conviction and remanded his case to Grant County District Court. Judge Steve Leben wrote a concurring opinion, where he questioned whether the constitutional harmless-error test should apply in cases where the trial court refused to give a jury instruction central to the defense case instead of the nonconstitutional harmless error test. But because the State did not show the error was harmless here and neither parties briefed this issue, Leben joined the court's opinion in full.

    Appeal No. 120,246: State of Kansas v. Curtis L. Coleman Jr.

    Summary calendar; no oral argument

    The Supreme Court affirmed Wyandotte County District Court's decision summarily denying Coleman's postsentence motion to modify sentence. He filed a motion seeking to modify his hard-40 life sentence originally imposed in 1999. In a unanimous opinion written by Senior Judge Mike Ward, the court rejected Coleman's contention that his sentence violated his Sixth Amendment right to a jury trial because the trial judge—not a jury—made the factual findings necessary for sentence enhancement. The Supreme Court reasoned no legal avenue exists for the relief requested by Coleman.

    Kansas Court of Appeals decisions released today


  • 09 Sep 2020 10:38 AM | Amanda Kohlman (Administrator)

    Effective immediately transport of inmates from the jail for in person hearings is suspended. The suspension of transport of inmates will be through at least September 25, 2020.

    Effective immediately all defendants required to report to serve their jail sentence on weekends will be suspended. The dates to report will be suspended through at least September 30, 2020 and will have to be rescheduled.

    The reason for these summary actions relates to the Shawnee County DOC experiencing an increase in COVID cases, and the corresponding need for testing and quarantine.

    Hon. Richard D. Anderson

    Chief Judge

    Kansas Third Judicial District


  • 09 Sep 2020 9:35 AM | Amanda Kohlman (Administrator)

    Summary Calendar • No Oral Argument

    When a case does not present a new question of law, and oral argument is deemed neither helpful to the court nor essential to a fair hearing of the appeal, it is placed on the summary calendar. These cases are deemed submitted without oral argument.

    Appeal No. 112,322:State of Kansas v. Guadalupe Ochoa-Lara

    Johnson County: (Petition for Review) Officers discovered Ochoa-Lara used another person's Social Security number to lease an apartment and reported income under that Social Security number from his work at a restaurant. After a bench trial, the district court convicted Ochoa-Lara of two counts of identity theft, imposed a concurrent seven-month prison sentence, and granted probation. The Court of Appeals affirmed the conviction and held the Immigration Reform and Control Act does not preempt state prosecution for identity theft based on the unlawful use of another person’s Social Security number and that Ochoa-Lara failed to raise the issue of multiplicity in district court. The Kansas Supreme Court reversed the Court of Appeals and held Ochoa-Lara’s prosecution for identity theft for using another person’s Social Security number to obtain employment was expressly preempted by the Immigration Reform and Control Act. Three justices filed either a concurring or dissenting opinion. Ochoa-Lara was granted a petition for certiorari to the U.S. Supreme Court. On March 3, 2020, the U.S. Supreme Court reversed the Kansas Supreme Court’s decision and held the Immigration Reform and Control Act neither expressly nor impliedly preempted the state prosecution. Issues on review are: 1) the implementation of the U.S. Supreme Court's ruling; and 2) whether the appellate courts can reach the issue of multiplicity.

    Appeal No. 114,413: City of Kingman v. Ronald S. Ary

    Kingman County: (Petition for Review) Ary appeals his conviction of driving under the influence. Ary claims the arresting officer violated his Fourth Amendment rights by subjecting him to a warrantless blood test pursuant to the Kansas Implied Consent Law. The Court of Appeals agreed but also agreed with the City of Kingman's argument the results of Ary's blood test are admissible in this instance under the good-faith exception to the exclusionary rule. The Court of Appeals affirmed. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court's decisions in Ryce and Nece because the officer was not relying on an unconstitutional statute as authority to conduct the search; and 2) the Legislature abandoned its duty to pass constitutional laws by ignoring the constitutional bases for the Kansas Implied Consent Law.

    Appeal No. 115,980: State of Kansas v. Trenton M. Heim

    Reno County: (Petition for Review) Heim was arrested for driving under the influence of alcohol in 2015. A deputy later read Heim the statutorily required implied consent advisories from a DC-70 form. Heim refused to take a breath alcohol test but asked to take a blood alcohol test, and a sample was taken as prescribed by statute. With the underlying facts stipulated by the parties, the district court denied Heim's motion to suppress, which alleged a Fourth Amendment violation based on a warrantless search to which he did not voluntarily consent. The district court convicted Heim of DUI. The Court of Appeals affirmed the district court and held the good-faith exception applies to the deputy's warrantless collection of evidence. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court's decisions in Ryce and Nece because the officer was not relying on an unconstitutional statute as authority to conduct the search; 2) the Legislature abandoned its duty to pass constitutional laws by ignoring the constitutional bases for the Kansas Implied Consent Law; and 3) the Legislature criminalized an individual's ability to withdraw consent, rendering K.S.A. 8-1025 facially unconstitutional.

    Appeal No. 117,081: State of Kansas v. Amy Stoll

    Reno County: (Petition for Review) Stoll was convicted in 2008 for conspiracy to unlawfully manufacture a controlled substance and ordered her to register under the Kansas Offender Registration Act. However, the specific drug offense committed was not added to the Kansas Offender Registration Act until 2011. Stoll complied with the registration for about seven years. Stoll was convicted of failing to register in 2015 and sentenced to 24 months' probation. On appeal, Stoll's arguments involved whether she had bad intent, such as intentionally failing to register, rather than negligently not following the timeframe set by the Legislature. The Court of Appeals affirmed her conviction. Issues on review are whether the Court of Appeals erred: 1) by rejecting or not reaching Stoll's substantial compliance argument; 2) by declining to consider Stoll's strict liability argument for lack of standing; and 3) in finding Stoll's stipulation was invited error that precluded the Court's review.

    Appeal No. 118,648: State of Kansas v. Christopher L. Herring

    Sedgwick County: (Petition for Review) Herring appealed the district court's denial of his presentencing motion to withdraw his no contest plea to one count of robbery and one count of aggravated assault. Herring contended the district court abused its discretion by using an incorrect legal standard in denying his motion. The Court of Appeals held even though the district court partially misstated the legal standard, the error was harmless because the district court made findings on the record that trial counsel's representation of Herring was effective, competent, and reasonable. The Court of Appeals stated the district court expressly found trial counsel did a good job in representing Herring and affirmed. Issue on review is whether the Court of Appeals erred in applying harmless error to excuse the district court's abuse of discretion in applying the incorrect legal standard when considering Herring's presentencing motion to withdraw his plea.

    Appeal No. 119,871: State of Kansas v. Alex Dee Davis

    Sedgwick County: (Criminal Appeal) Davis was charged with felony murder, reckless second-degree murder, fleeing or attempting to elude an officer, leaving the scene of an accident, and multiple counts of theft, burglary, and robbery. The charges were related to an October 2016 car accident in which a car driven by Davis struck a second vehicle. The driver of the second vehicle later died. After Davis was apprehended, officers discovered jewelry and other personal property in his car allegedly taken during several burglaries and robberies. Davis was convicted on nearly all the charges but acquitted on the robbery and burglary charges. The district court sentenced Davis to a hard-25 life sentence and consecutive and concurrent sentences on the remaining convictions. Issues on appeal are whether: 1) the State failed to present sufficient evidence that Davis committed the felony offense of fleeing or attempting to elude an officer by trying to elude capture for a felony; 2) the State failed to prove both alternative means of felony murder instructed by the court and whether the felony murder conviction can survive the super-sufficiency analysis required by State v. Timley; 3) the district court erroneously admitted statements elicited from Davis after he invoked his right to remain silent; 4) the district court erroneously admitted irrelevant evidence that was more prejudicial than probative; 5) the district court erroneously excluded evidence the decedent delayed medical treatment, violating Davis' constitutional right to present a complete defense; 6) the State committed reversible prosecutorial error by advising the jury in voir dire that a lack of evidence could not be held against the State; and 7) cumulative error denied Davis a fair trial.

    Appeal No. 119,998: State of Kansas v. Jeremy D. Levy Jr.

    Sedgwick County: (Criminal Appeal) Levy was convicted of felony murder from a shooting at a mall in Wichita. The incidents were part of an on-going gang war. The district court sentenced Levy to a hard-25 life sentence. Issues on appeal are whether: 1) there was sufficient evidence to support the underlying felony because the State's theory was Levy was shooting at a person, not an occupied vehicle, and the vehicle was unoccupied; 2) the district court erred in allowing evidence of the gang war and Levy's gang affiliation; 3) the district court violated Levy's due process rights by expanding the jury instruction to find Levy guilty if he "or another" killed the victim when the State specifically charged Levy with killing the victim; and 4) cumulative error denied Levy a fair trial.


  • 09 Sep 2020 9:34 AM | Amanda Kohlman (Administrator)

    9 a.m. • Wednesday, September 16

    Appeal No. 119,529: State of Kansas v. Luis Antonio Aguirre

    Riley County: (Criminal Appeal) In October 2009, the bodies of T.M. and J.M. were found buried together near Odgen. J.M. was the son of T.M. and Aguirre. Once the bodies were identified, the investigation turned to Aguirre, who had lived in Odgen from February until October 2009.In June 2012, a Riley County jury found Aguirre guilty of capital murder but declined to impose the death sentence. On appeal, the Supreme Court found Aguirre's confessions were obtained in violation of his Miranda rights and reversed his conviction. This appeal stems from Aguirre's retrial, which lead to Aguirre's convictions of voluntary manslaughter of T.M. and premeditated first-degree murder of J.M. Issues on appeal are whether: 1) Aguirre's statements to police were made in violation of Miranda and also involuntary; 2) the district court erred in allowing the State's expert witness on botany to testify to his "expert" opinion on the length of time the grave was left open, in violation of the requirements of K.S.A. 60-456(b); 3) the district court erred in finding the stipulation to the authenticity of emails was binding for the second trial; 4) there was sufficient evidence for a reasonable jury to find Aguirre killed J.M. intentionally and with premeditation; 5) the district court erred in denying Aguirre's requested cautionary instruction against inference stacking; 6) the prosecutor's closing argument lowered the burden of proof and led jurors to believe they need not be unanimous; and 7) the district court had jurisdiction to convict Aguirre of voluntary manslaughter.

    11 a.m. • Wednesday, September 16

    Case No. 122,036: In the Matter of Mark David Murphy, Respondent

    Original Proceeding Related to Attorney Discipline: (One-year suspension) The Supreme Court admitted Murphy to the practice of law in April 1987. Murphy's ethical issues involve his representation of the parties to the sale of a limousine service, conflicts of interest, and whose interest Murphy was representing. The hearing panel unanimously recommends Murphy be suspended from practicing law for one year. The disciplinary administrator recommends Murphy be disbarred. Murphy seeks a reprimand.

    1:30 p.m. • Wednesday, September 16

    Appeal No. 117,439: Alysia R. Tillman and Storm Fleetwood v. Katherine A. Goodpasture, D.O., et al.

    Riley County: (Petition for Review) Tillman and Fleetwood challenge the denial of their cause of action, first recognized by the Kansas Supreme Court in Arche v. United States of America, 247 Kan. 276, 798 P.2d 477 (1990). In 2013, the Kansas Legislature passed K.S.A. 60-1906, stating no cause of action exists in Kansas for wrongful birth of a child. The district court granted Goodpasture's motion for judgment on the pleadings. The district court found K.S.A. 2013 Supp. 60-1906 was constitutional, stating Sections 5 and 18 of the Kansas Constitution Bill of Rights did not protect this cause of action since wrongful birth was not a cause of action recognized in 1859 when the Constitution was adopted. The Court of Appeals agreed, stating K.S.A. 2013 Supp. 60-1906 is constitutional because a cause of action for wrongful birth was unavailable when the Constitution was adopted and thus does not implicate Sections 5 or 18 of the Kansas Constitution Bill of Rights. Issues on review are whether K.S.A. 60-1906 violates Sections 5 and 18 of the Kansas Constitution Bill of Rights and the right to remedy by due course of law because the statute bars common law medical negligence wrongful birth causes of action without providing a substitute remedy.

    9 a.m. • Thursday, September 17

    Appeal No. 117,034: Mark T. Schreiner v. Chad S. Hodge and Danny Smith

    Johnson County: (Petition for Review) This is a lawsuit for damages filed by Schreiner involving the actions of two Mission police officers: Hodge, who was investigating a resident's complaint about a strange truck parked near her home, and Smith, a supervising sergeant called to the scene at Schreiner's request. The district court granted summary judgment to the two officers, essentially ruling the officers had good reason to investigate and the 25-minute encounter was reasonable under the circumstances. The district court also held the officers were immune from Schreiner's claims for damages. The Court of Appeals affirmed. Issues on review are whether the district court erred: 1) in granting summary judgment and finding the officers had reasonable suspicion to stop and temporarily detain Schreiner; and 2) in finding the officers were immune from Schreiner's claims for damages.

    11 a.m. • Thursday, September 17

    Appeal No. 117,725: Howard Johnson III v. U.S. Food Service et al.

    Workers Compensation: U.S. Food Service seeks review of the Court of Appeals, finding the Kansas Legislature's adoption of the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment to replace the Fourth Edition of the same violates Section 18 of the Kansas Constitution Bill of Rights and the Due Process Clause of the 14th Amendment to the U.S. Constitution. The Court of Appeals struck down various Kansas statutes referencing the Sixth Edition because the adoption of such provisions has "emasculated" the workers compensation scheme to the point it no longer constitutes an adequate substitute remedy for an injured worker's right to bring a common-law action. Both U.S. Food and the Kansas Attorney General filed petitions for review. Issues on review are whether: 1) the change in K.S.A. 2015 Supp. 44-501e, which requires the use of the Sixth Edition, violates Section 18 of the Kansas Constitution Bill of Rights and the Due Process Clause of the 14th Amendment to the U.S. Constitution; and 2) the reduction in the workers compensation awards diminishes or abrogates a remedy protected by due process without promoting the general welfare and without providing an adequate substitute remedy.

    9 a.m. • Friday, September 18

    Appeal No. 118,307: In the Matter of the Estate of Lanny Lentz

    Shawnee County: (Petition for Review) Lentz' three adult daughters were heirs to his estate, which included several real properties, four of which are at issue. The district court distributed two of the properties to Diann Wyatt and the other two properties to Lana Kennedy and Marilyn Lentz as joint tenants in common. Wyatt appealed the district court's valuation of the four properties. The Court of Appeals concluded Wyatt's appeal was not filed in a timely fashion and dismissed the appeal for lack of jurisdiction. The Court of Appeals also held even if it reached the merits of Wyatt's issues on appeal, the court found she did not properly raise them before the district court and they were not property preserved for appellate review. Issues on review are whether: 1) Wyatt timely appealed the district court's decision on valuation; 2) Wyatt properly preserved the issues for appellate review; and 3) the district court made a proper determination of the valuation of the properties.

    11 a.m. • Friday, September 18

    Appeal No. 121,536: In the Interest of F.C., a Minor Child

    Leavenworth County: (Petition for Review) The natural mother appealed a decision of the district court that F.C., her 13-year-old daughter, was a child in need of care. She argued an abuse of discretion occurred in the district court's determination and a lack of evidence existed at the time of the adjudication to support a finding of child in need of care. The natural mother also argued she was not offered a feasible reintegration plan at the time of disposition. The Court of Appeals agreed with the natural mother and held upon review of the evidence in the light most favorable to the State, the district court's adjudication of F.C. as a child in need of care under K.S.A. 38-2202(d)(2) and (d)(3) was not supported by clear and convincing evidence. The Court of Appeals reversed and remanded with directions to dismiss the proceeding and restore legal custody to the natural mother and give her physical custody of F.C. The State filed a petition for review. Issues on review are whether: 1) there is sufficient evidence to support the district court's finding of a child in need of care; and 2) the Court of Appeals erred in overturning the district court's decision.




  • 09 Sep 2020 9:23 AM | Amanda Kohlman (Administrator)

    The cases summarized below are on the Kansas Supreme Court's September 14-18, 2020, docket. All cases will be heard by videoconference and livestreamed on the Supreme Court YouTube channel.

    This docket differs from in-person oral arguments in the Supreme Court courtroom. Instead of hearing cases back-to-back, the court will hear cases at 9 a.m., 11 a.m., and 1:30 p.m., with a recess after each.

    9 a.m. • Monday, September 14

    Appeal No. 120,824: State of Kansas v. Gianni Massimo Daino

    Johnson County: (Petition for Review) The district court suppressed evidence taken from Daino's apartment. It found Daino's actions, in response to the officer's request to enter his apartment, would be found by a reasonable person to indicate his consent. However, the district court felt compelled by Kansas law to hold Daino's acts were implied consent, which is not valid. The Court of Appeals reversed the district court and found Daino's acts, whether labeled as express consent or implied consent, gave valid consent for officers to enter his apartment. Issue on review is whether the Court of Appeals erred in finding Daino unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate the smell of marijuana.

    11 a.m. • Monday, September 14

    Case No. 122,638: In the Matter of James W. Fuller, Respondent

    Original Proceeding Related to Attorney Discipline: (Indefinite suspension) The Supreme Court admitted Fuller to the practice of law in Kansas in April 2017. Fuller began taking Adderall while in law school, using the university's health services, but began illegally purchasing Adderall after he graduated. His ethical issues arose when he represented the person who was selling him Adderall and also started missing court dates and obligations. Fuller also began using methamphetamine and marijuana. Fuller began trading legal services for drugs. He eventually reported his actions, and his law firm also filed a complaint. In October 2019, the Supreme Court suspended Fuller's license for failure to comply with the annual attorney registration requirements. Fuller engaged in the unauthorized practice of law after his suspension. The hearing panel unanimously recommends indefinite suspension of Fuller's license to practice law. The disciplinary administrator recommends indefinite suspension. Fuller seeks a six-month suspension.

    1:30 p.m. • Monday, September 14

    Appeal No. 118,035: Jayhawk Racing Properties LLC and Heartland Park Raceway LLC v. City of Topeka

    Shawnee County: (Petition for Review) Jayhawk Racing sued the City for breach of contract when the City failed to pay the company, as promised in a contract, almost $2.4 million for its reversionary interest in the land where Heartland Park Raceway is located. When the City refused to issue bonds to pay for the sale, Jayhawk Racing sued, and the City moved to dismiss the action. With the agreement of the parties, the district court treated the motion as one for summary judgment and granted the motion, dismissing Jayhawk Racing's lawsuit. The Court of Appeals reversed the court's dismissal, finding the court in granting summary judgment ignored the fundamental purpose of the contract: to purchase an interest in real estate. The Court found this is a proprietary contract where the City was buying all interests in a racetrack. The Court indicated the district court improperly limited its view of the contract to a contingency promise made by the City to issue Sales Tax and Revenue (STAR) Bonds, and the City's financing method was an illegal attempt by one council to bind future city councils, thus making the entire contract unenforceable. The Court of Appeals held the City was not entitled to judgment as a matter of law. Issues on review are whether: 1) the Court of Appeals erred in holding the City's issuance of STAR bonds is the exercise of a proprietary rather than a governmental function; 2) under Kansas law, the City can be held to a contractual covenant of good faith and fair dealing to exercise the governmental function of issuing STAR bonds; and 3) the Court of Appeals misapplied the Kansas cash-basis and budget laws.

    9 a.m. • Tuesday, September 15

    Appeal No. 111,447: State of Kansas v. Victor Valdiviezo-Martinez  

    Johnson County: (Petition for Review) Valdiviezo-Martinez was convicted of identity theft based on false information he provided to his employer. The Social Security number he used belonged to someone in Washington state. Issues on review are whether: 1) the state provided sufficient evidence that Valdiviezo-Martinez committed any act with intent to defraud for economic benefit; 2) because identity theft is not a continuing offense, the state failed to prove Valdiviezo-Martinez used a Social Security number; and 3) K.S.A. 21-6107 is unconstitutionally vague.

    11 a.m. • Tuesday, September 15

    Appeal No. 120,503: State of Kansas v. Corbin J. Breitenbach

    Sedgwick County: (Criminal Appeal) Breitenbach was charged with entering an apartment and sexually assaulting and attempting to kill a 7-year-old girl. Breitenbach's DNA was found at the scene. A jury convicted him of attempted capital murder, rape, aggravated criminal sodomy, and aggravated burglary. He was sentenced to 592 months' incarceration on the attempted murder charge and consecutive sentences for the remaining convictions. Issues on appeal are whether: 1) the district court abused its discretion in denying Breitenbach's request for independent DNA testing; 2) the district court abused its discretion in denying Breitenbach's request for new appointed counsel; 3) the district court abused its discretion in denying Breitenbach's request for standby counsel; 4) the State violated Breitenbach's due process rights by failing to disclose exculpatory evidence of fingerprint testing; and 5) cumulative error denied Breitenbach a fair trial.

    1:30 p.m. • Tuesday, September 15

    Appeal No. 117,839: Building Erection Services Co. Inc. v. Walton Construction Co. Inc.

    Johnson County: (Petition for Review) This case concerns problems with the construction of a press box at University of Kansas Memorial Stadium almost 20 years ago. On the first appeal, the district court held Building Erection Services (BESCO), one of the subcontractors on the project, was contractually obligated to indemnify Walton Construction, the general contractor and assignee of KU's indemnification rights, for remediation damages, attorney fees, and expenses because BESCO failed to anchor a glass curtain wall system to the press box substructure in accordance with shop drawings. The Court of Appeals reversed the district court's order that BESCO pay all the remediation costs as damages and remanded for the district court's "determination of those damages that arose out of, or resulted from, BESCO's negligent acts or omissions." On remand, the district court conducted a second evidentiary hearing and assessed half the costs of removing the metal wall panels and glass that comprised the press box's curtain wall to BESCO. On a second appeal, the Court of Appeals held substantial competent evidence did not support an assessment of half the remediation costs to BESCO. The court also reversed the attorney fees award, finding it was not supported by substantial competent evidence. On the second remand, the district court reinstated the award assessing half the glass removal costs and increased the award for the metal panel removal costs to 85% with no new evidence from Walton. The district court also reinstated the reversed attorney fees award. BESCO appealed, arguing the district court failed to comply with the second remand and substantial competent evidence did not support the third damages award. In the third appeal, the Court of Appeals reversed the district court, holding that substantial competent evidence does not support the damage award and held Walton did not provide evidence to support the damage award. The Court also reversed the attorney fees award. Issues on review are whether the Court of Appeals: 1) properly reversed the district court ruling under the law of the case doctrine and mandate rule; and 2) was correct in reversing the attorney fees award.



  • 03 Sep 2020 11:33 AM | Amanda Kohlman (Administrator)

    Supreme Court accepting comment on amended rule about child in need of care records

     

    The Kansas Supreme Court is accepting public comment on an amended rule making child in need of care cases confidential to prevent public access. 

    Comment on the proposed amendment may be made by email to publiccomments@kscourts.org until 5 p.m. Thursday, September 17. The subject line must read “Rule 106.”

    Proposed Amendment to Rule 106 is on the Kansas judicial branch website at www.kscourts.org under Rules Open for Public Comment

    The amendment would make all court records in a child in need of care case confidential and not publicly available, including the events index. This will allow the child’s complete name to be used throughout the court record without disclosing it to the public.

    If the proposed rule change is not adopted, the full names of minors subject to child in need of care proceedings will not be protected in the case management system if the names are used in the case caption.



  • 31 Aug 2020 10:27 AM | Amanda Kohlman (Administrator)

    The Kansas Supreme Court issued the following published decisions August 28:

    Appeal No.113,762: State of Kansas vs. Robert L. Braun

    Summary calendar; no oral argument

    The Supreme Court held a motorist's conviction for driving under the influence—which was overturned because of an unconstitutional search—could not be affirmed on the basis of an alternative method of committing DUI when the motorist was not convicted of that version in district court. The motorist was convicted in Ellis County District Court of driving under the influence while having a blood alcohol content of more than .08, in violation of K.S.A. 2012 Supp. 8-1567(a)(2). Based on recent Supreme Court cases declaring the Kansas Implied Consent scheme unconstitutional, the Court of Appeals agreed the blood test results had been obtained as a result of an unconstitutional search and should have been suppressed. But the Court of Appeals said the error was harmless because the stipulation established facts that supported finding the motorist guilty of an alternative method of committing DUI—driving under the influence to a degree rendering a person incapable of safely operating a vehicle, K.S.A. 2012 Supp. 8-1567(a)(3). The Supreme Court reversed because the terms of the stipulation limited its use to court proceedings on the charge the driver had a blood alcohol content of .08 or more. The Supreme Court held the Court of Appeals should not have applied the stipulation to the alternative charge. The case was remanded to the district court for further proceedings related to the alternative charge only.

    Appeal No.116,937: State of Kansas vs. Kent D. Lindemuth

    Archived oral argument

    The Supreme Court reversed Lindemuth's conviction of criminal threat in Shawnee County District Court as unconstitutional because the statute under which his conviction was rendered potentially criminalizes speech protected under the First Amendment to the U.S. Constitution.

    Appeal No.118,543: State of Kansas vs. Giovanni M. Juarez, a/k/a Giovanni Juarez-Hernandez

    Summary calendar; no oral argument

    A plurality of the Supreme Court affirmed the decision of the Court of Appeals and Lyon County District Court on the sole issue for which the Supreme Court granted review. Specifically, the plurality held the district court did not violate the procedural due process rights of Juarez by providing untimely notice to him of a duty to register under the Kansas Offender Registration Act. The plurality expressed no opinion on the validity of the district court's registration order itself.

    Appeal No.119,087: Gary L. Woessner vs. LaborMax Staffing and XL Specialty Insurance Co. 

    Summary calendar; no oral argument

    The Supreme Court upheld the Workers Compensation Appeals Board award of death benefits to the widow of man who died after an unexplained fall from a workplace catwalk. A urinalysis performed on a sample taken shortly after the accident revealed a large amount of marijuana metabolites in the man's system. The Supreme Court determined the report could be used to demonstrate impairment without testimony from the person who wrote the report. But the court upheld the board's award based on the board's finding that any impairment did not contribute to the accident.

    Kansas Court of Appeals decisions released today


  • 26 Aug 2020 1:37 PM | Amanda Kohlman (Administrator)

    Two fewer courts processing marriage license applications

     

    TOPEKA—Two fewer district courts are processing marriage license applications, but 16 others continue to provide the remote service by phone and email.

    District courts in Crawford and Miami counties no longer take marriage license applications, but both will finish processing ones they have already received if applicants pay the required fee by October 15. Applicants who miss the deadline will have to start the process anew in a different court.  

    Courts that issue marriage licenses

    Applicants must call a court to begin the process.

    People who live in Johnson, Sedgwick, Shawnee, or Wyandotte county will get their marriage licenses through the district court in their county:

    People who live in other counties can choose from 12 court locations to get a marriage license:

    Courts will receive applications by encrypted email or mail

    Marriage license paperwork requires the applicant to provide a photo identification that includes personally identifiable information, such as date of birth, Social Security number, or driver’s license number. To protect this information, courts will begin an encrypted email exchange with the applicant through which the applicant will return completed paperwork.

    If an applicant does not have email, courts will send and receive paperwork by U.S. mail.

    Fulfilling the oath requirement

    Marriage license applicants previously were required to appear in person in the clerk of court office to swear an oath that includes affirming:

    • they are of lawful age to marry or have necessary consent to marry;

    • are not related in degrees prohibited by law; and

    • no legal reason exists why they should not marry.

    Under the new process, applicants will make this affirmation on paper.

    Court operations during pandemic

    Chief Justice Marla Luckert and the Kansas Supreme Court have issued a series of administrative orders to define how district and appellate courts will safely operate during the COVID-19 pandemic. This allows state courts to continue to provide vital services to the people of Kansas while following public health guidelines that protect judges, court staff, and the people who come into our courts.


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