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 October 7 decision to extend the COVID-19 state of disaster emergency from October 16 through November 15. Luckert said the health and safety of jurors, witnesses, litigants, members of the public, law enforcement officials, court employees, and judges have dictated the flow of judicial proceedings as courts tailor their functions to meet guidance given by local public health officials. She commended the efforts of judges and court employees to meet the challenge to process many cases remotely using videoconferencing and other technology and to conduct in-person proceedings and trials.   "Our courts have a done a great job overcoming the many challenges brought about by COVID-19, but the pandemic continues to present some barriers to access to justice," Luckert said. "As long as these barriers exist, Kansans are at substantial risk of forfeiting claims, causes of action, and legal rights if these time requirements are reinstated."   Statutory speedy trial provisions in district courts Administrative Order 2020-PR-107 continues the suspension of statutory deadlines and time limitations to bring a defendant to trial in district court. The order does not impact a criminal defendants constitutional right to a speedy trial. 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 even while statutes of limitation and statutory time standards or deadlines are suspended. Judges hear many types of proceedings using videoconferencing technology, greatly reducing the need for in-person hearings. And in-person hearings, including jury trials, are also taking place with physical distancing and other precautions.

The Kansas Supreme Court issued the following published decisions October 8, 2020

Appeal No. 117,043: Patrick Whigham vs. Kansas Department of Revenue Appeal No. 119,116: Nathan A. Jarvis vs. Kansas Department of Revenue Summary calendar; no oral argument In two cases arising from administrative driver's license suspension proceedings following a motorist's arrest for driving under the influence, the Supreme Court held statutory amendments enacted in 2016 now allow courts to consider constitutional claims during the administrative proceedings and set aside a license suspension if the arrest was unlawful. In Jarvis v. Kansas Department of Revenue, the district court set aside the license suspension after it found that the arresting officer lacked reasonable suspicion to make the arrest. The Supreme Court held the 2016 amendments to K.S.A. 2019 Supp. 8-1020 now allow district courts to consider whether the arrest was constitutional and to provide a remedy if a constitutional violation is found. In Whigham v. Kansas Department of Revenue, the district court refused to consider whether the arrest was constitutional. Based on Jarvis, the Supreme Court held district courts now have the authority to consider the constitutionality of the arrest, and that in Whigham's case it was error for the district court to refuse to consider the issue. The case was remanded to the district court to consider the lawfulness of the law enforcement encounter.

Kansas Court of Appeals decisions released today

The Supreme Court Nominating Commission today voted on the names of three nominees for Supreme Court justice to send to Gov. Laura Kelly.

A letter from the nominating commission chair will be hand-delivered to the governor’s office during regular business hours Tuesday to formally notify her of the commission’s selection. Its delivery will begin the 60-day timeline the governor has to decide which of the three nominees she will appoint to fill the vacancy created by Justice Carol Beier's September 18 retirement.

The three nominees are:

Judge Kim Cudney

Cudney has been chief judge of the 12th Judicial District since 2006. She previously was in private practice, served as county attorney for Washington County, and worked as a research attorney for U.S. District Chief Judge Patrick Kelly and Kansas Supreme Court Justice Harold Herd. She graduated from Kansas State University and Washburn University School of Law. She lives in Greenleaf.

Judge Melissa Taylor Standridge

Standridge has been a Kansas Court of Appeals judge since February 2008. She previously was chambers counsel to U.S. District Magistrate Judge David Waxse and U.S. District Judge Elmo Hunter and a lawyer with the Shook, Hardy, and Bacon law firm. She graduated from the University of Kansas and the University of MIssouri-Kansas City School of Law. She lives in Leawood.

Kristen Wheeler

Wheeler has been law clerk for U.S. District Judge Thomas Marten since 2018. She previously was in private practice at Robinson Law Firm and Morris, Laing, Evans, Brock and Kennedy. She graduated from the University of Kansas and Washburn University School of Law. She lives in Wichita.

Public interviews

The commission interviewed 11 applicants in the Kansas Judicial Center in Topeka before narrowing the list of nominees to three through successive rounds of voting. All interviews and voting were open to the public and livestreamed on YouTube.

Merit selection process

Supreme Court justices are appointed through a merit-based nomination process that Kansans voted to add to the Kansas Constitution in 1958.

When there is a vacancy on the court, the Supreme Court Nominating Commission has 60 days from the date the vacancy occurs to submit names of three qualified nominees to the governor.

After receiving the list of nominees, the governor has 60 days to appoint one of them to the court.

The commission announces when it is accepting nominations, and it releases the names of who is being considered based on the nominations received.

The commission reviews the nominees' qualifications and conducts public interviews of the nominees. Through this process, the commission decides which three nominees to recommend to the governor.

Eligibility requirements

To be eligible, a nominee must be: 

• at least 30 years old; and 

• a lawyer admitted to practice in Kansas and engaged in the practice of law for at least 10 years, whether as a lawyer, judge, or full-time teacher at an accredited law school. 

Selection criteria

When the Supreme Court Nominating Commission reviews nominees for the Supreme Court, they look at the person’s: 

• legal and judicial experience;
  
  
• educational background;
  
  
• character and ethics;
  
  
• temperament;
  
  
• service to the community;
  
  
• impartiality; and
  
  
• respect of colleagues.

Code of judicial conduct

Justices must follow the law and not be influenced by politics, special interest groups, public opinion, or their own personal beliefs.

Justices demonstrate their accountability by following a Code of Judicial Conduct that establishes standards of ethical behavior. They also take an oath of office that includes swearing to support, protect, and defend the U.S. Constitution and Kansas Constitution.

Retention elections

After a new justice serves one year on the court, he or she must stand for a retention vote in the next general election to remain in the position. If retained, the justice serves a six-year term.

Supreme Court Nominating Commission

The Supreme Court Nominating Commission has nine members. There is one lawyer and one nonlawyer from each of the state’s four congressional districts, plus one lawyer who serves as chairperson. Nonlawyers are appointed by the governor. Lawyers are elected by other lawyers within their congressional districts. The chairperson is elected by lawyers statewide.

The Kansas Supreme Court has adopted Rule 124 to allow courts to collect contact information from witnesses and potential jurors who volunteer it to help with case processing, scheduling, or participation in a hearing or trial.

Contact information will include current mailing address, phone number, and email address. The contact information is not a public record under the Kansas Open Records Act, and it will not be disclosed to anyone outside the courts.

Courts will use the contact information as a service to potential jurors and witnesses. It may be used to remind witnesses to appear or to alert jurors of last-minute instructions for reporting. The rule will also help prevent unnecessary trips to the courthouse in the event a hearing is canceled or rescheduled.

Supreme Court Rule 124 includes provisions for retaining and ultimately disposing of contact information courts collect.

The Kansas judicial branch will use a $3.52 million grant to pay for pandemic-related expenses and help courts shift to more online and remote services.

"The pandemic challenged our courts to reimagine how we serve the people of Kansas,” said Chief Justice Marla Luckert. “We have embraced new ways of operating and are making greater use of technology to provide more service online and remotely. The immediate focus was health protection, but the results are increased transparency and more efficient and user-friendly courts."

The State Finance Council approved the grant from federal coronavirus relief funds on September 17, following a recommendation from the governor's Strengthening People and Revitalizing Kansas (SPARK) Task Force.

Grant money will pay for immediate needs, such as personal protective equipment and additional technology. The money also will be used to expand online services, making it easier for people to apply for a marriage license or watch a virtual court proceeding.

Court operations

The largest portion of the grant—$3.35 million—will help courts comply with public health guidelines during the pandemic.

The grant will pay for:

• plexiglass shields, masks, hand sanitizer, sanitizing wipes, and cleaner to protect court users and staff in court offices and courtrooms;
  
  
• additional equipment to expand our capacity for virtual court hearings that provide easy public and media access to court proceedings; and
  
  
• temporary funding for five information technology employees through December 2020 to help courts with immediate and expanding needs for videoconferencing, internet streaming, and audiovisual equipment.
  

Specialty courts

For the several judicial districts that operate specialty courts—including drug, behavioral or mental health, truancy, and veteran’s treatment court—regular, frequent contact is needed to address underlying reasons a person becomes involved in the criminal justice system.

Grant funding will allow these courts to purchase smartphones and tablets for continuous, reliable access to remote meetings between specialty court team members and court participants. Consistent contact makes it more likely participants will remain in their treatment programs and communities, meeting two primary objectives of these specialty courts. 

Online marriage license portal

A new marriage license portal will allow a couple to apply online for a license. The applicants will be able to use digital signatures, upload required documents, and pay the marriage license fee.

Before the pandemic, a couple seeking a marriage license would appear in person at a courthouse to swear an oath and submit information and identification to court staff. When the pandemic forced courts to limit in-person service, courts found a temporary solution for processing applications using encrypted email. The portal will replace that temporary solution.

Text notification system

During the pandemic, courts have had to reschedule court hearings to manage the number of people in a courthouse at one time. The text notification system will allow courts to quickly communicate changes to court participants who ask for the alerts. Messages could include information about newly scheduled hearings, reminders of hearing dates, and payment notifications. It will be automated through the centralized case management system currently being installed.

Similar text notification systems used in other state court systems have reduced failure to appear rates and the need to reschedule missed hearings.

Virtual court directory

An online virtual court directory will provide a central location for anyone to see a virtual court proceeding open to the public. The portal will list judges by judicial district and provide links to livestreamed court proceedings and dockets.

The Kansas Supreme Court issued the following published decision September 25, 2020

Appeal No. 117,436: State of Kansas vs. Dale M. Willis Archived oral argument On direct appeal, the Supreme Court affirmed Willis' convictions for first-degree murder and battery in Johnson County. In an opinion written by Justice Caleb Stegall, the court held Willis' jury instruction error claims were barred by the invited error doctrine because Willis requested and agreed to the wording of those jury instructions. Additionally, the Supreme Court examined several statements made by the State and held none constituted prosecutorial error. Further, the Supreme Court held the district court properly admitted testimony from an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives and evidence from his brother James Willis' smartphone. Finding no trial-phase errors, the Supreme Court held no cumulative error occurred. Moreover, the Supreme Court held no sentencing errors existed. The district court did not impermissibly weigh aggravating and mitigating circumstances because it did not find any mitigating factors existed. Finally, the Supreme Court deemed abandoned Willis' claim the district court violated his Fifth Amendment rights because Willis failed to properly brief the issue.

Kansas Court of Appeals decisions released today

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.

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."

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

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