The key resource for attorneys practicing in Topeka and Shawnee County. 


Upcoming events

  • 30 Apr 2021 5:16 PM | Amanda Kohlman (Administrator)

    Next week, the Kansas Legislature will be considering the Kansas Judicial Branch's budget. The judiciary's specific requests are aimed at replacing lost revenues, funding additional positions, and proving long overdue raises to employees and judges.

    The TBA Board of Directors encourages our members to advocate for adequate funding of our judiciary. One important way you can do this is by contacting your own legislators and other legislative leaders. You can find who represents you at ksleglookup.org and you can also find contact information at the following link: http://www.kslegislature.org/li/b2021_22/members/.

    Second, share the following op-eds that appear in today’s KC Star and Wichita Eagle on social media—particularly Twitter—with the hashtags #kscourts and #ksleg. KC Star: https://www.kansascity.com/opinion/readers-opinion/guest-commentary/article251037774.html. Wichita Eagle: https://www.kansas.com/opinion/guest-commentary/article251017214.html.

    TBA President, Sarah Morse

  • 30 Apr 2021 3:09 PM | Amanda Kohlman (Administrator)

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

    Archived oral argument video

    A divided Kansas Supreme Court upheld the constitutionality of a state law abolishing a medical malpractice claim commonly known as a "wrongful birth" action. The decision affirmed Riley County District Court's dismissal of a lawsuit brought by parents who alleged their prenatal doctor negligently failed to inform them about serious fetal abnormalities observable from an ultrasound. The child was born with severe, uncorrectable neurological, cognitive, and physical impairments. The plaintiffs’ lawsuit claimed they would have terminated the pregnancy if the ultrasound results were accurately reported and the doctor’s negligence deprived the mother of her right to make an informed decision about her options. In 2013, the Kansas Legislature enacted a statute barring these lawsuits, which were recognized as viable claims in a 1990 Kansas Supreme Court decision. The parents argued the 2013 law violated their rights to a jury trial and to a remedy under the Kansas Constitution. A Riley County District Court judge ruled the statute was constitutional and dismissed the case. In the majority opinion written by Justice Dan Biles, the Supreme Court agreed the constitutional right to a jury trial and to a remedy did not prevent the Legislature from eliminating the previously available right to sue in this instance. These constitutional guarantees typically limit the Legislature's authority to tamper with civil causes of action recognized when the state constitution was adopted, as well as some of their close modern descendants. But the Supreme Court held these claims did not fall into that category because they had unique factual requirements for the injury to be actionable and required special rules for calculating damages. "The wrongful birth cause of action is not just a different application of the traditional medical malpractice tort," the majority concluded, "it is a new species of malpractice action first recognized in 1990." Three justices wrote separately. Justice Caleb Stegall wrote a concurring opinion arguing the 1990 decision recognizing wrongful birth as a viable cause of action should be overruled, avoiding the constitutional questions. Chief Justice Marla Luckert dissented, arguing medical malpractice actions existed when the state constitution was adopted, so the 2013 statute violated plaintiffs' right to a jury trial. Justice Eric Rosen joined the chief justice's dissent. He also wrote a separate dissent arguing the existence of an injury should be sufficient for the constitutional right to remedy to protect a cause of action from being abolished by statute, without needing to decide whether the injury was actionable when Kansas adopted its constitution.

    Appeal 118,734: Ayse Carmen v. Bryant Harris

    Summary calendar; no oral argument 

    The Kansas Supreme Court ruled any child support obligation for the mother's prenatal care and childbirth expenses must be included in the initial child support award entered when paternity is determined. Johnson County District Court denied a mother’s request more than a year after the paternity decision to add reimbursement for prenatal care and childbirth expenses to the father’s child support obligation. In a unanimous decision written by Justice Dan Biles, the Supreme Court upheld the district court, noting its power to modify the previously established support obligation was limited by statute.

    Appeal No. 120,209: State of Kansas v. Sergio Angel Arrizabalaga

    Archived oral argument video
    The Kansas Supreme Court reversed the judgments of the Court of Appeals and Saline County District Court and remanded this case for further proceedings after the State brought an interlocutory appeal from an order suppressing evidence gathered from a vehicle search. The district court granted the suppression motion after finding the duration of the continued detention of the driver was excessive and unlawful. The Court of Appeals affirmed this decision, with one judge dissenting. Upon review, the Supreme Court found the trooper conducting the stop acted diligently under the circumstances and the delay was not an unlawful extension of the driver’s detention.

    Appeal No. 121,951: State of Kansas v. Ronald Johnson

    Summary calendar; no oral argument

    Appeal No. 122,281: State of Kansas v. Benjamin A. Appleby

    Summary calendar; no oral argument

    Appeal No. 122,293: State of Kansas v. Christopher M. Trotter

    Summary calendar; no oral argument

    Johnson, Appleby, and Trotter each challenged the sentence imposed for his first-degree premeditated or capital murder conviction. The Kansas Supreme Court rejected their arguments that K.S.A. 2020 Supp. 21-6628 provides an avenue or independent means to attack a hard-50 sentence and affirmed the lower court decisions denying each relief. Johnson's and Trotter's cases originated in Wyandotte County. Appleby's case originated in Johnson County.

  • 30 Apr 2021 8:55 AM | Amanda Kohlman (Administrator)

    Appeal No. 118,710: State of Kansas v. Jasmon D. Watson

    Archived oral argument video
    The Kansas Supreme Court reversed Watson's Wyandotte County conviction for Medicaid fraud. On review, Watson argued the prosecutor erred by shifting the burden of proof and misstating the evidence and law during closing arguments. He also claimed the district court committed instructional error, and that cumulative error deprived him of a fair trial. The Supreme Court rejected Watson's argument the prosecutor shifted the burden of proof. However, the Supreme Court found the prosecutor misstated the law because an intent to defraud is an essential element of Medicaid fraud, but the prosecutor's comments suggested otherwise. The Supreme Court also found the prosecutor erred when she said Watson did not provide any evidence to support his defense because Watson testified, and his testimony was evidence. The Supreme Court held the combined effect of these two errors prejudiced Watson's right to a fair trial. Finally, the Supreme Court held an instructional error compounded the prosecutorial error, and their cumulative effect also deprived Watson of a fair trial.

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

    Archived oral argument video
    The Kansas Supreme Court affirmed the decision of Riley County District Court after Aguirre appealed his convictions for first-degree premeditated murder and voluntary manslaughter. A majority of the Supreme Court determined Aguirre's statements to law enforcement were voluntary. The Supreme Court also unanimously concluded: the district court committed harmless error in admitting expert testimony concerning the length of time a grave had been open; Aguirre's conviction for first-degree premeditated murder was supported by sufficient evidence; the parties' previous stipulation to the authenticity of certain emails made during Aguirre's first trial was also binding on his second trial; the district court did not err in refusing to issue a requested jury instruction on inference stacking; the prosecutor did not err during closing arguments; the district court had jurisdiction to convict Aguirre of two lesser included offenses despite the fact he was charged with only a single count of capital murder; and there was no cumulative error.

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

    Summary calendar; no oral argument

    The Kansas Supreme Court upheld Levy's first-degree felony murder conviction in Sedgwick County District Court. Levy shot and killed Erick Vazquez on June 17, 2017. Vazquez was an innocent victim caught in cross-fire between two rival gangs. Levy challenged the sufficiency of the evidence used to convict him, claimed the district court erroneously admitted gang evidence, argued his jury instructions impermissibly expanded the charge against him, and suggested cumulative error denied him a fair trial. The Supreme Court found no error and affirmed the conviction.

    Appeal No. 121,054: State of Kansas v. Lee Davis IV

    Summary calendar; no oral argument 

    The Kansas Supreme Court affirmed the Court of Appeals decision denying Davis' motion to withdraw his plea outside the one-year time limitation. The State charged Davis with first-degree murder and child abuse for allegedly beating his four-year-old son to death. Davis pleaded no contest to one count of second-degree murder and one count of child abuse in 2013 in Brown County District Court. Four years later, Davis filed a pro se K.S.A. 60-1507 motion to withdraw his plea, claiming excusable neglect for his out-of-time request. The district court denied the motion. Davis appealed. The Court of Appeals affirmed the district court ruling. In affirming the Court of Appeals and district court decisions, the Supreme Court found harmless a Court of Appeals error in the way it determined whether to grant or deny Davis' motion to withdraw a plea.

    Appeal No. 121,685: State of Kansas v. Carlos Antonio Gallegos

    Archived oral argument video

    The Kansas Supreme Court affirmed Gallegos’ conviction for first-degree premeditated murder. Gallegos appealed his conviction, arguing Wyandotte County District Court had erred by declining to give jury instructions on voluntary manslaughter and voluntary intoxication. Gallegos also argued the State committed prosecutorial error in closing arguments. The Supreme Court found no error occurred.

    Appeal No. 121,181: State of Kansas v. Mark Holley III

    Archived oral argument video

    The Kansas Supreme Court reversed Holley's first-degree murder conviction but affirmed child endangerment convictions related to four separate events within a month of each other in 2017. Sedgwick County District Court convicted Holley of first-degree felony murder in the shooting death of D'Shaun Smith, two counts of aggravated robbery, two counts of child endangerment, theft, and possession of marijuana. On direct appeal, Holley challenged his first-degree felony murder and child endangerment convictions and lifetime postrelease supervision and restitution orders. The Supreme Court found the district court committed reversible error when it refused a self-defense instruction in the first-degree murder charge. The Supreme Court vacated the entire sentence and remanded to district court for further proceedings.
  • 14 Apr 2021 8:01 AM | Amanda Kohlman (Administrator)

    The Supreme Court issued Administrative Order 2021-RL-032 today to provide emergency rules of procedure for hearings challenging government actions related to the COVID-19 pandemic under 2021 Senate Bill 40.

    SB 40 creates a new process for a person aggrieved by certain government emergency-related orders and decisions during a state of disaster emergency to file a civil action in district court to seek relief. The bill authorizes the Supreme Court to adopt emergency rules of procedure to aid the timely resolution of district court hearings related to those actions.

     The new emergency rules are written with the understanding that some parties challenging government acts may not be represented by an attorney. The rules are crafted to help parties complete and deliver their petitions, and the order includes template forms to make the process easier. However, a person is not required to use the template forms to seek relief, and no action will be dismissed solely for not using the forms. 

  • 13 Apr 2021 10:05 AM | Amanda Kohlman (Administrator)

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

    Archived oral argument video
    The City of Topeka entered into an agreement with private owners to assume full ownership of a motor speedway, the rights to which would be paid through Sales Tax and Revenue (STAR) bonds. The City subsequently decided not to fulfill the terms of the agreement. The private owners filed suit seeking damages for breach of contract. Holding the agreement was an exercise of a governmental function and not binding on successive city councils, Shawnee County District Court granted the City's motion to dismiss. The Court of Appeals reversed, holding the agreement was an exercise of an administrative function, and remanded for proceedings on the breach of contract action. The Kansas Supreme Court granted review. Writing for the court, Justice Eric Rosen affirmed the district court and reversed the Court of Appeals. The court held city revenue projects may be divided into two categories: projects that serve a governmental or legislative function, and projects that serve a proprietary or administrative function. The development, introduction, or improvement of services are, by and large, considered governmental, and the power to levee a tax generally belongs to the class of governmental power. One city council may not bind a subsequent one to its political decisions involving the exercise of government functions, so the new city council was not obligated to carry out the terms of the agreement. Justice Caleb Stegall wrote a concurring opinion in which he questioned the ongoing validity and viability of the legal distinction between governmental and proprietary municipal functions.

  • 02 Apr 2021 1:09 PM | Amanda Kohlman (Administrator)

    Appeal No. 118,379: Hugh Michael Hawkins v. Southwest Kansas Co-op Service and Travelers Indemnity Co.

    Archived oral argument video
    The Kansas Supreme Court upheld the Workers Compensation Board's allocation of settlement proceeds between Hawkins and his employer, Southwest Kansas Co-op. Hawkins was severely injured in a workplace crane collapse, and Southwest paid him workers compensation benefits. Hawkins then sued various entities responsible for the crane and obtained settlements. A jury trial against the remaining entity resulted in the jury finding Southwest 25% at fault for Hawkins' injuries and allocating the remaining fault to a party he had already settled with. Southwest asserted its statutory subrogation interest against the settlement proceeds. In a unanimous decision written by Justice Dan Biles, the Supreme Court held the subrogation interest should be reduced by Southwest's percentage of fault, even though the jury's verdict was rendered after the settlement it seeks to recover from, and that, having done so, the Workers Compensation Board properly calculated the subrogation interest.

    Appeal No. 121,467: State of Kansas v. Aaron David Cash

    Archived oral argument video
    The Kansas Supreme Court upheld Johnson County District Court's denial of Cash's motion to suppress certain drug evidence seized during a traffic stop. Cash was stopped for not having a license plate decal. Cash told the officer the vehicle belonged to a friend. While Cash searched for registration and insurance documents, the officer noticed a plastic bag and a Crown Royal bag hanging out of a partially opened safe on the rear floorboard. The officer could not see into either bag, so she asked Cash to open it. Cash complied, and the officer saw drug paraphernalia in the plastic bag. Cash also said there was a pipe inside the safe. The officer then searched the vehicle and found drugs inside the safe and elsewhere in the vehicle. Cash filed a motion to suppress the evidence seized in the search, arguing the officer lacked the requisite reasonable suspicion to extend the traffic stop to ask him questions about the safe and the bags. The district court denied the motion, finding the officer had reasonable suspicion to extend the stop. Cash was convicted at a bench trial. On appeal, a majority panel of the Court of Appeals affirmed the ruling, but one judge dissented and wrote the officer's limited subjective experience combined with the presence of the bags did not give rise to reasonable suspicion. In a unanimous decision, the Supreme Court affirmed the Court of Appeals’ majority panel's findings. It specifically held the officer's subjective experience with these kinds of investigations was irrelevant. In looking at the totality of the circumstances, an objective standard from the standpoint of a trained law enforcement officer, the presence of the bags and the safe presented a particularized and objective basis for suspecting Cash was engaged in illicit activity.

    Appeal No. 122,685: In the Matter of A.B.

    Archived oral argument video

    The Kansas Supreme Court reversed Clay County District Court's decision that determined the aggravated indecent liberties with a child statute, K.S.A. 2020 Supp. 21-5506(b)(1), unconstitutionally vague, overbroad, and in violation of the Equal Protection Clause to the U.S. Constitution. The State had charged a then 14-year-old girl for having sexual relations with a then 14-year-old boy, who was a few months older than the girl. The State charged the girl with aggravated indecent liberties with a child instead of the Romeo and Juliet statute, K.S.A. 2020 Supp. 21-5507, a less severe crime. The state cited In re E.R., 40 Kan. App. 2d 986, 197 P.3d 870 (2008), which held individuals charged under the Romeo and Juliet statute must be "under age 19 and older than the child by some period less than 4 years" to be adjudicated a juvenile offender. In an opinion written by Justice Dan Biles, the court overruled E.R. The Supreme Court concluded the Court of Appeals holding in E.R. incorrectly interpreted the Romeo and Juliet law since the statute's plain language does not require the offender be older than the other juvenile.

  • 02 Apr 2021 1:08 PM | Amanda Kohlman (Administrator)

    Beginning June 4, 2021, Division 5 and Division 10 will hold temporary orders dockets on Friday mornings. Division Five will hear the June 4th T.O. docket and the divisions will alternate each week thereafter.

    Regardless of the judge assigned to the case for all other matters, if counsel serves the opposing party at least 48 hours in advance, the Administrative Assistant will set it on the next available T.O. docket. Counsel will be advised by the AA which division they will be in when they call or email to set the T.O. hearing.

    For the submission of pre-marked exhibits for Zoom evidentiary hearings and trials, parties are strongly encouraged to use the Domestic Document Submission Portal which may be found on the Shawnee County Court website under the Domestic Forms link or accessed here: https://form.jotform.com/202256212281040.


  • 30 Mar 2021 9:34 AM | Amanda Kohlman (Administrator)

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

    Archived oral argument video
    The Kansas Supreme Court affirmed the judgment of Sedgwick County District Court after Breitenbach appealed its denials of his requests for independent DNA testing, new counsel, and standby counsel. The Supreme Court found there was no abuse of discretion on the part of the district court in denying those motions. It also found there was no violation of Breitenbach's due process rights regarding disclosure of evidence

  • 16 Mar 2021 10:00 AM | Amanda Kohlman (Administrator)

    Appeal No. 121,936: In the Matter of the Wrongful Conviction of M.M.

    Archived oral argument video
    On direct appeal, the Kansas Supreme Court affirmed Clay County District Court's decision granting the State's motion to dismiss M.M.'s Petition for Certificate of Innocence under K.S.A. 2019 Supp. 60-5004. In an opinion written by Justice Caleb Stegall, the court held the statute's unambiguous plain language bars claimants from recovering for wrongful juvenile adjudications because they are not criminal convictions.

    Appeal No. 121,949: State of Kansas v. Shelbert Smith

    Archived oral argument video

    The Kansas Supreme Court affirmed the decision of Sedgwick County District Court denying Smith's motion for leave to appeal his convictions out of time. Smith had twice before appealed the district court's denials of his motion to appeal out of time under the third exception set forth in State v. Ortiz¸ 230 Kan. 733, 640 P.2d 1255 (1982), and the Supreme Court had twice before reversed the district court's decisions and remanded the matter for further consideration. This time, Smith challenged the district court's credibility determination with respect to his third Ortiz exception claim and its conclusion that certain newly raised arguments were outside the scope of the Supreme Court's previous appellate mandates. The Supreme Court unanimously concluded these newly raised issues were outside the scope of the previous mandates, which were stated in specific terms that limited the district court to consider only Smith's credibility in the context of the third Ortiz exception. The Supreme Court also unanimously affirmed the district court's credibility determination as supported by substantial competent evidence.

  • 08 Mar 2021 10:35 AM | Amanda Kohlman (Administrator)

    Appeal No. 120,028: State of Kansas v. James L. Thornton

    Summary calendar, no oral argument

    The Kansas Supreme Court upheld Thornton's convictions in Douglas County District Court for possession of illegal drugs and drug paraphernalia. After a short pursuit, Thornton was stopped by Lawrence police for failing to have headlamps on his bicycle. Officers discovered a syringe in Thornton's backpack, a glass pipe on his person, and a bag containing narcotics along the path of the pursuit. On appeal, the State conceded the backpack search was illegal and the syringe should have been excluded from the case. The Court of Appeals affirmed the convictions, holding Thornton waived any argument the syringe's use at trial prejudiced him. In a unanimous opinion written by Justice Dan Biles, the Supreme Court affirmed the Court of Appeals' decision as right for the wrong reason. The Court of Appeals should have addressed whether the improper use of the evidence prejudiced Thornton under its caselaw requiring the State to show lack of prejudice when it benefits from an error. But the Supreme Court addressed the issue itself, concluding the error was harmless given the trial evidence other than the syringe supporting the convictions.

    Appeal No. 120,030: Emmanuel Ellie v. State of Kansas

    Summary calendar, no oral argument

    The Kansas Supreme Court affirmed Johnson County District Court, which reversed Ellie's convictions after finding an actual conflict of interest between Ellie and his counsel affected the representation. The Supreme Court held it could not reach the State's argument the district court applied the wrong standard because the State failed to preserve the issue for appellate review by failing to pinpoint cite where in the record it previously raised the issue or alternatively to argue why an appellate court could consider the issue for the first time on appeal.

    Appeal No. 120,184: In the Matter of the Care and Treatment of Richard A. Quillen

    Archived oral argument video

    The Kansas Supreme Court affirmed a Johnson County jury's verdict that Quillen, who had been civilly committed under the Kansas Sexually Violent Predator Act, was not safe to be placed in transitional release. On appeal, Quillen argued the district court erred when it denied his request to instruct the jury it must find Quillen had serious difficulty controlling his behavior and this instructional error violated his substantive due process rights. The Supreme Court held that at a transitional release hearing under the Kansas Sexually Violent Predator Act, substantive due process requires the State to show the respondent continues to meet the criteria justifying initial commitment, including proof the respondent has serious difficulty controlling his or her behavior, in order to deny transitional release. But the Court also held the jury instructions given at Quillen's trial, when taken as a whole, necessarily and implicitly required the jury to find he had serious difficulty controlling his dangerous behavior and thus were constitutionally adequate.

    Appeal No. 121,881:State of Kansas v. Michael Steven Hayes

    Summary calendar, no oral argument

    In an appeal filed by an inmate serving a life sentence for murder, the Kansas Supreme Court affirmed Atchison County District Court's summary denial of a motion to correct an illegal sentence. The inmate claimed his sentence was unconstitutional. Under longstanding precedent, constitutional claims do not fit within the narrow statutory definition of an illegal sentence.

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