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  • 12 May 2020 2:59 PM | Amanda Kohlman (Administrator)

    Kansas District Court 

    NOTICE TO ALL ATTORNEYS PRACTICING CRIMINAL LAW

    May 12, 2020

    Due to the outbreak of COVID 19 and the Kansas Supreme Court’s Administrative Order 2020-PR-45 issued on May 1, 2020, the 3rd Judicial District Criminal Department has established the following:

    • 1.                  All criminal jury trials are continued until further notice but in any event will not begin prior to July 6, 2020.
    • 2.                  Since the courthouse remains closed to the public, hearings set during this time of restricted operations will be continued generally until further notice unless a video conference is scheduled.

    Pursuant to Supreme Court Administrative Order 2020-PR-45, essential or nonessential functions are authorized to be heard by two-way telephonic or electronic audio-visual communication. This Order includes all criminal proceedings, specifically pleas, criminal sentencings, probation revocations, show causes, or any other proceedings.

    Audio-visual conference hearings via Zoom will be scheduled for the following types of hearings for defendants who are in the Shawnee County Department of Corrections: pleas, sentencing, show cause, bond issues, and any other pretrial, bench trial, or post-trial proceedings.  If the defendant requests release from custody, defense counsel should verify the defendant’s proposed housing, employment, etc.  The schedule for hearings will be as follows or as otherwise set by the division:

    Mondays - Divisions 9 and 11

    Wednesdays - Divisions 1 and 13

    Fridays – Divisions 12 and 14

    Tuesdays – Division 7 (Misdemeanor hearings) 

    In addition, audio-visual conference hearings via Zoom will be scheduled for defendants who are out of custody for the same type of hearings listed above for in custody defendants.  However, the hearings scheduled for out of custody defendants will not be limited to the schedule listed above for in custody defendants. 

    Defense counsel will be allotted up to 15 minutes prior at the beginning of the hearing to talk with their client.  If more time is needed, the defense counsel should independently schedule time with their client in advance of the hearing.

    Defendants will be questioned at the beginning of the audio-visual conference if they are willing to waive their personal appearance.  Counsel will need to explain to their clients prior to the hearing that they will be questioned about waiving their personal appearance (except for bond hearings).  If a defendant is not willing to waive his or her personal appearance, the hearing will need to be rescheduled until further notice since in person hearings are not currently allowed under the Supreme Court Orders. Defense counsel is responsible for filing defendant’s written waiver of their personal appearance. 

    Zoom hearings will be streamed to YouTube simultaneous to the hearings so that the public can observe the proceedings.  However, the YouTube recording will be erased immediately following the hearing.   Individuals watching on YouTube are not allowed to photograph or record proceedings as the official record will be made by the court reporter. 

    • 3.                  Counsel do not need to file Motions for Continuance for hearings that have been (or will be) cancelled due to the Supreme Court Orders.
    • 4.                  Emergency issues will be handled by the Duty Judge and/or the Backup Duty Judge.
    • 5.                  First Appearances will be heard by the Duty Judge (Judge Moylan or her designee) and the Backup Duty Judge will deal with emergency issues such as bond resets, warrant recalls, etc.  The schedule for the Backup Duty Judges through June is as follows:
    • May 11-15                 Judge Debenham     Division 13
    • May 18-22                 Judge Parrish            Division 14
    • May 25-29                 Judge Geier              Division 1
    • June 1-5                     Judge Ossmann       Division 9
    • June 8-12                   Judge Rios                Division 11
    • June15-19                 Judge Ebberts           Division 12
    • June 22-26                Judge Debenham     Division 13
    • June 29-July 2           Judge Parrish            Division 14

    Modification of Bond – If the State and defense counsel agree to a modification of bond, the backup duty judge will handle the bond reset process.  If counsel do not agree, the bond issue will be referred to the assigned division.  As of May 12, 2020, the court suspended DCR 3.317, Motions in Criminal Cases.  Timelines as set out in Supreme Court Rule 133 will be followed which provides that responses be filed no later than 7 days after service of a motion or as otherwise provided by the court.

    • 6.                  New cases on first appearance will be set 60 days out on either a criminal docket or CAD.
    • 7.                  The court is granting a 30 day automatic extension of all motion deadlines currently set in May.  If other extensions are needed, counsel should file a motion. 

    Download Original Notice below:

    Notice to All Practicing Criminal Law Attorneys.pdf


  • 12 May 2020 11:06 AM | Amanda Kohlman (Administrator)

    Eight more district courts to process marriage licenses

     

    TOPEKA—Eight more district courts will resume issuing marriage licenses using a process that doesn't require in-person contact.

    District courts in Barton, Leavenworth, Lyon, Miami, Pawnee, Reno, Saline, and Thomas counties will begin processing new marriage license applications starting Wednesday, May 13.

    Applicants must call a court to begin the process.

    Ten courts have been processing marriage licenses using this new process since April 20.

    Courts that will issue marriage licenses

    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 will now be able to choose from 14 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 also 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’s 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.

    Prior marriage license applications will not be processed

    If a person submitted a marriage license application before courts closed to in-person contact on March 18, and the marriage license was not issued, the person will need to submit a new application to a court issuing marriage licenses using this new process. This applies even if the earlier application was submitted to a court that will now issue marriage licenses, and it is to ensure all requirements are met. 

    State courts slowly expanding operations 

    On May 1 the chief justice issued six new administrative orders to provide updated direction to state courts and court users as the state slowly reopens following a plan outlined by the governor April 30.

    Under these orders, courts will gradually increase the number and types of service delivered to the people of Kansas.

    State courts have been operating in a limited capacity since March 18 under earlier Supreme Court orders issued in response to the COVID-19 pandemic. Courts initially were restricted to only essential functions, but they were later permitted to perform additional functions to the extent local resources and circumstances allowed.

    For a complete list of judicial branch actions in response to the novel coronavirus, visit Kansas Courts Response to COVID-19.


  • 08 May 2020 11:21 AM | Amanda Kohlman (Administrator)

    Kansas Court of Appeals to hear oral arguments by videoconference

     

    TOPEKA—For the first time in its history, Kansas Court of Appeals judges will appear remotely to hear oral argument by videoconference at 1:30 p.m. Tuesday, May 12. The oral arguments will be livestreamed on YouTube.

    "Kansas courts are committed to delivering timely justice, especially during challenging times such as we are experiencing now," said Karen Arnold-Burger, chief judge of the Court of Appeals. "We decide many cases on their written record, but some attorneys want the opportunity to argue their cases before the court, and oral argument by videoconference allows us to accommodate them."

    The Court of Appeals has allowed attorneys to appear for oral argument by videoconference since 2016, but the sessions weren't livestreamed and the three-judge panels sat together in the court’s courtroom in the Kansas Judicial Center.

    This time, with the Kansas Judicial Center currently closed to in-person contact to prevent the spread of COVID-19, the judges and attorneys will all appear from separate locations by videoconference.

    Access to the May 12 oral argument livestream will be through the Court of Appeals YouTube channel.

    The Court of Appeals canceled its March and April oral arguments and, unless parties objected, placed cases on a summary calendar. The court's regular May and June dockets will be summary calendars only. These cases are decided on their written record without oral argument.

    The Kansas Supreme Court had its first remote videoconference oral argument April 11 when justices heard a case filed by Governor Laura Kelly against the Legislative Coordinating Council on an expedited schedule that included a Saturday morning oral argument. The Supreme Court has livestreamed oral arguments online from its Topeka courtroom since 2012.

    The Court of Appeals is a traveling court that meets to hear cases at locations throughout the state. While oral arguments are always open to the public, they are not livestreamed.

    The Court of Appeals panel participating in Tuesday's hearing are Judge Steve Leben, who will preside over the hearing, and Judges Anthony J. Powell and Kim R. Schroeder.

    The case to be heard May 12 docket is:

    Appeal No. 120,068: Thoroughbred Associates LLC et al. v. Kansas City Royalty Co. LLC et al.

    The appeal involves a dispute over revenues from natural gas wells in Comanche County between two businesses, Thoroughbred Associates and Kansas City Royalty. Thoroughbred Associates operated a group of gas wells it organized into a single unit, sharing profits with each of several lease owners. Kansas City Royalty claims its lease with Thoroughbred was included in the single unit; if so, it would be entitled to a share of profits from those gas wells.

    In an earlier appeal, the Supreme Court determined language in Kansas City Royalty's lease prevented it from being included in the unit. This appeal relates to a claim that the parties agreed—after that lease had been entered into—to include the Kansas City Royalty lease in the larger combined unit of gas wells.


  • 07 May 2020 9:25 AM | Amanda Kohlman (Administrator)

    Chief justice seeking comment on suspension of deadlines

     

    Kansas Supreme Court Chief Justice Marla Luckert is accepting public comment until noon Wednesday, May 20, 2020, on next steps related to current orders suspending deadlines and time limitations in judicial proceedings.

    Authority

    Chief Justice Luckert used authority granted in 2020 House Substitute for Senate Bill 102 (39 Kan. Reg. 304) to suspend statutes of limitations and all other statutory deadlines and time standards that apply to the conduct or processing of judicial proceedings through these administrative orders:

    A declared state of a disaster emergency must exist for the chief justice to have authority to suspend a statutory time limitation or deadline (H. Sub. for S.B. 102, § 1(a)). Once the declared state of disaster emergency terminates, the order suspending deadlines or time limitations can continue for up to 150 days. The order can also be terminated earlier.

    Background

    The chief justice suspended time standards due to uncertainty about the impact the novel coronavirus would have on courts, attorneys, and court users, in particular:

    • the ability of attorneys and courts to timely file and process filings while moving from office operations to remote work;
    • the ability of courts to conduct jury trials within public safety guidelines;
    • the ability of people representing themselves in court to meet jurisdictional or other deadlines, which could result in harsh sanctions or case dismissal, at a time they could not get walk-in access to a clerk of court office.

    Reason for seeking input

    As attorneys and courts resume more office and court activities, the chief justice would like input on possible next steps.

    No one knows with certainty how long Kansas will remain under a declared state of disaster emergency or the long-range impact of COVID-19 on our state and on our judicial system.

    Some Kansas courts are now allowing at least some public access to clerk of court offices and courtrooms, but others cannot. No Kansas court is currently able to conduct a jury trial within public safety guidelines.

    Orders affecting speedy trial

    The chief justice plans to keep in place, for the time being, portions of the orders suspending statutory provisions for bringing a criminal defendant to trial under K.S.A. 2019 Supp. 22-3402. A separate request for comment will be issued before that portion of the orders is terminated.

    Open for comment—options for moving forward

    The chief justice requests comment on the following options for moving forward, indicating preference for only one.

    Comment will be accepted by email to cjorderspubliccomment@kscourts.org until noon Wednesday, May 20, 2020.

    Option 1

    Give several weeks’ notice of the date an order will terminate those portions of Administrative Orders 2020-PR-016, 2020-PR-032, and 2020-PR-047 that suspend all statutory limitations of time and deadlines applying to judicial proceedings, except those deadlines and time limitations in K.S.A. 2019 Supp. 22-3402.

    If this option is favored, how much notice should be given? 30 days? 

    Option 2

    An order would provide that all statutes of limitation or deadlines relating to judicial proceedings remain suspended except for those specifying deadlines for:

    • responses to discovery;
    • responses and replies to motions;
    • motions for rehearing; and
    • deadlines set by court order.
    If you favor this general concept, would you add anything to this list of exceptions?


    Option 3

    The statutes of limitation and statutory deadline provisions in Administrative Orders 2020-PR-016, 2020-PR-032, and 2020-PR-047 would remain in place until further order of the chief justice or expiration under H. Sub. for S.B. 102.


  • 04 May 2020 11:38 AM | Amanda Kohlman (Administrator)

    Chief justice issues new administrative orders for courts as state plans to reopen

     

    TOPEKA—Chief Justice Marla Luckert today issued six new administrative orders to provide updated direction to state courts and court users as the state slowly reopens following a plan outlined by the governor Thursday evening.

    “These orders continue some of the strategies put in place at the beginning of this pandemic response and provide updated guidance for gradually reopening state courts, according to the framework announced by Governor Kelly,” said Chief Justice Marla Luckert. “This approach reflects our commitment to protecting public health, and the health of our employees and judicial officers, while we increase the number and types of service we are able to deliver to the people of Kansas.”

    Administrative Order 2020-PR-044: Reissuing Administrative Order 2020-PR-36 under Governor’s April 30, 2020, State of Disaster Emergency Declaration

    This order suspends deadlines, time standards, and other applicable speedy trial provisions in municipal courts that have been closed by the COVID-19 pandemic and establishes that they will remain suspended until the court reopens and can reasonably place cases on its calendar or until further order. It also authorizes using two-way telephonic or electronic audio-visual communication in court proceedings to the extent they are permitted by the United States and Kansas Constitutions.

    Administrative Order 2020-PR-045: Authorizing Two-Way Audio-Visual Communication in Any Court Proceeding

    In this order, the chief justice authorizes courts to use two-way audio-visual communication to replace in-person judicial proceedings to protect the health and safety of court users, staff, and judicial officers.

    The remote proceeding must be consistent with the United States and Kansas Constitutions, allow for confidential communication between counsel and a party or witness, and be reviewable by the public contemporaneously or soon after.

    Administrative Order 2020-PR-046: Suspending Deadlines and Time Limitations Under K.S.A. 2019 Supp. 22-3402

    In this order, the chief justice suspends deadlines and time limitations to bring defendants to trial under authority granted her by House Substitute for Senate Bill 102, which took effect on its March 19, 2020, publication in the Kansas Register.

    Administrative Order 2020-PR-047: Suspending Deadlines and Time Limitations in Judicial Proceedings

    In this order, the chief justice suspends statutes of limitations and statutory time standards regarding the conduct or processing of judicial proceedings under authority granted her by House Substitute for Senate Bill 102, which became law March 19.

    The order allows for a district or appellate judge, or hearing officer, to exempt a case from the suspension of a statutory or other deadline, as long as it does not involve a matter covered by the governor’s Executive Order 20-10, which temporarily prohibits certain foreclosures and evictions.

    Administrative Order 2020-PR-048: Order Relating to District Court Operations in Counties Not Affected by a Stay-at-Home Order or Subject to a Directive Closing a County Courthouse or Other Judicial Office

    This order applies to court operations in cities and counties in which no local stay-at-home order is in place now or after such a stay-at-home order is lifted.

    It directs the chief judge of the judicial district to work with the local public health official to verify that all appropriate measures are taken to protect the health and safety of the public, court users, court staff, and judicial officers. It also includes instructions for staffing the court.

    Administrative Order 2020-PR-049: Relating to District Court Operations in Counties Affected by a Stay-at-Home Order or Subject to a Directive Closing a County Courthouse or Other Judicial Office

    This order acknowledges that county officials, in response to local public health conditions, may impose more stringent restrictions than those issued by the governor and that these restrictions may affect courthouses, judicial officers, and court staff. Should that occur, the court covered by a local public health order will continue to perform essential functions as outlined. Nonessential functions may also be performed as resources and circumstances allow.

    Essential functions

    State courts have been operating in a limited capacity since March 18 under earlier Supreme Court orders issued in response to the COVID-19 pandemic. Courts initially were restricted to only essential functions, but they were later permitted to perform additional functions, to the extent local resources and circumstances allowed.

    Essential functions generally include:

    • determining probable cause for persons arrested without a warrant;
    • first appearances;
    • bond hearings;
    • warrants for adults and juveniles;
    • juvenile detention hearings;
    • care and treatment emergency orders;
    • protection from abuse and protection from stalking temporary orders;
    • child in need of care hearings and orders;
    • commitment of sexually violent predators; and
    • isolation and quarantine hearings and orders.

    Many courts, including the Supreme Court, have been carrying out their duties through remote hearings involving videoconferencing technology.

    For a complete list of judicial branch actions to limit the spread of the novel coronavirus, visit Kansas Courts Response to COVID-19.


  • 01 May 2020 12:35 PM | Amanda Kohlman (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 119,439: State of Kansas v. Diantre Marquelle Lemmie

    Summary calendar; no oral argument

    A Saline County jury convicted Lemmie of first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. His convictions arose from the murder of Adonis Loudermilk during a robbery. On appeal, Lemmie argued the district court judge erred by admitting the hearsay statements of a co-conspirator, evidence that Lemmie was upset the night of the murder because of a missing methamphetamine pipe, and evidence that Lemmie provided police with the passcodes to two cell phones. The Kansas Supreme Court today held the district judge properly admitted the hearsay statements under the statutory hearsay exceptions, and the methamphetamine pipe evidence was properly admitted under K.S.A. 60-455. Further, even if the Supreme Court assumed admission of the passcode evidence was error, it was harmless beyond a reasonable doubt because no evidence from the cell phones came in at trial. Lemmie also challenged the sufficiency of the evidence supporting his conviction for first-degree murder. The Supreme Court held there was more than ample evidence to support Lemmie's conviction, including surveillance footage, eyewitness testimony, and incriminating Facebook messages.


    Appeal No. 119,660: State of Kansas v. Joseph J. Craig

    Summary calendar; no oral argument

    The Kansas Supreme Court today affirmed Craig's Geary County convictions for first-degree murder, conspiracy to commit first-degree murder, aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession of a firearm by a convicted felon. His crimes occurred under the guise of a drug transaction during which his coconspirator took the victim's backpack and Craig killed the victim. In a unanimous opinion written by Justice Dan Biles, the court rejected Craig's claims the district court erred in its handling of the jury's guilty verdicts for first-degree murder and second-degree intentional murder and by failing to give a voluntary intoxication instruction. As to the guilty verdicts, the court held the district court properly sentenced Craig on the first-degree murder conviction only. Concerning the jury instruction, the court determined the evidence could not show intoxication to the extent of impairing Craig's ability to form the criminal mind required for the crimes.

     

    Appeal No. 119,720: State of Kansas v. Ritchie D. Randle

    Archived oral argument video

    The Kansas Supreme Court today affirmed Randle's Sedgwick County convictions for first-degree murder and criminal discharge of a firearm. In 2017, Randle and two other men fired multiple shots into a Wichita apartment, killing the occupant. In a unanimous opinion written by Justice Dan Biles, the court rejected Randle's claims the district court erred by refusing to instruct the jury on unintentional but reckless second-degree murder, allowing hearsay statements into evidence, and admitting graphic photographs and videos into evidence.

     

    Kansas Court of Appeals decisions released today


  • 01 May 2020 11:36 AM | Amanda Kohlman (Administrator)

    Kansas Supreme Court Docket for May 4, 2020 (Continued)

     

    May 4 docket

    The May 4, 2020, docket consists entirely of cases on the Supreme Court’s summary calendar. The cases are summarized below.

    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 decided on their written record without oral argument.

     

    The May 4 docket was scheduled in early April after the Supreme Court took a series of actions in response to the COVID-19 pandemic that included closing the Kansas Judicial Center. It allowed the court to continue to decide cases without in-person contact for oral argument.

    June 5 docket

    The Supreme Court scheduled the June 5 docket by videoconference to allow the court and the attorneys arguing cases to appear by video. Cases will be identified when the docket is posted on the Supreme Court dockets page.

    This will be the second time the Supreme Court will hear cases by videoconference. The first was April 11 when the court heard Kelly v LCC et al on an expedited schedule that included a Saturday morning oral argument.

    The Supreme Court has livestreamed oral arguments online since 2012. The livestream for the June 5 docket will be on the Kansas Supreme Court YouTube channel.

    Appeal No. 120,481: State of Kansas v. Donnell Stafford

    Sedgwick County: (Criminal Appeal) Leuh Moore, Stafford’s wife, was killed in Wichita in April 2018. Law enforcement quickly identified Stafford as a suspect and arrested him two days later in Iowa. While being booked into jail in Iowa, Stafford admitted to killing Moore in Wichita. At trial, Stafford never denied responsibility for the killing but claimed it was a done in the heat of passion without premeditation. A jury found Stafford guilty of premeditated murder and two counts of cruelty to animals. The district court sentenced Stafford to a hard-50 life sentence. Issues on appeal are whether: 1) the district court erred by granting the State’s request to expand on the pattern instruction on the definition of premeditation; 2) the district court erred by failing to instruct the jury on the lesser included offense of heat of passion voluntary manslaughter; 3) the district court erred by admitting hearsay statements made to a sexual assault nurse examiner in violation of Stafford’s right of confrontation; and 4) cumulative error denied Stafford a fair trial.

    Appeal No. 120,600: State of Kansas v. Jerome Edwards

    Shawnee County: (Criminal Appeal) Edwards appeals the denial of his motion for a new trial following post-conviction DNA testing on evidence collected during this 1996 homicide investigation resulting in his conviction for murder and other crimes. The district court concluded the new evidence was favorable to Edwards because it was not unfavorable but that it was not sufficiently material because it was not reasonably probable to lead a jury to reach a different result. Issue on appeal is whether the district court abused its discretion in concluding the new DNA evidence favorable to him was not sufficiently material to lead a jury to reach a different result.

    Appeal No. 121,040: State of Kansas v. Quinton Moore

    Reno County: (Criminal Appeal) Moore was convicted of first-degree murder after he shot Clarence Allen seven times. Moore, Allen, and Jessica Crowe lived together. Moore confessed to detectives he shot Allen. The district court sentenced Moore to 618 months’ imprisonment with lifetime parole. Issues on appeal are whether: 1) the district court erred by denying Moore’s motion to suppress his confession; 2) the district court erred by denying Moore’s request for a voluntary intoxication jury instruction; 3) the State committed reversible error during closing argument; and 4) cumulative error denied Moore a fair trial.

    Appeal No. 121,051: In the Matter of the Adoption of Baby Girl G.

    Sedgwick County: (Petition for Review) The natural mother became pregnant in late 2017. The father learned of the pregnancy through rumor in February 2018. In March, the father and mother began to assume the child was his even though it was possibly another man’s baby. Between March and July, the father and mother exchanged many text messages, and the father purchased items for her and offered to pay an apartment security deposit or have her live with his mother and grandmother. In July, the mother stopped responding the father’s texts. The mother relinquished her rights to Baby G. without telling the father of the birth or her consent. The adoptive parents filed a petition for adoption, and the district court terminated the father’s parental rights, finding he failed to support the mother for the last six months of the pregnancy without reasonable cause, his financial support was incidental, he did not emotionally support the mother, and it was in Baby G’s best interests to terminate parental rights and grant the adoption. The Court of Appeals affirmed. Issues on review are whether: 1) K.S.A. 59-2136(h) is unconstitutional because it allows the termination of a biological father’s parental rights without first finding the father to be an unfit parent; and 2) the district court and Court of Appeals properly terminated the father’s parental rights and granted the adoption based on the evidence presented.

     


  • 01 May 2020 11:22 AM | Amanda Kohlman (Administrator)

    Kansas Supreme Court Docket for May 4, 2020

     

    May 4 docket

    The May 4, 2020, docket consists entirely of cases on the Supreme Court’s summary calendar. The cases are summarized below.

    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 decided on their written record without oral argument.

    The May 4 docket was scheduled in early April after the Supreme Court took a series of actions in response to the COVID-19 pandemic that included closing the Kansas Judicial Center. It allowed the court to continue to decide cases without in-person contact for oral argument.

    June 5 docket

    The Supreme Court scheduled the June 5 docket by videoconference to allow the court and the attorneys arguing cases to appear by video. Cases will be identified when the docket is posted on the Supreme Court dockets page.

    This will be the second time the Supreme Court will hear cases by videoconference. The first was April 11 when the court heard Kelly v LCC et al on an expedited schedule that included a Saturday morning oral argument.

    The Supreme Court has livestreamed oral arguments online since 2012. The livestream for the June 5 docket will be on the Kansas Supreme Court YouTube channel.

    Summary Calendar • No Oral Argument

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

    Ellis County: (Petition for Review) Braun was convicted of driving under the influence. Braun filed a motion to suppress the blood test result, alleging his constitutional rights were violated when officers obtained a blood sample from him without a warrant because Braun’s consent was not voluntary nor free from coercion. The district court denied Braun’s motion. The Court of Appeals held because Braun’s consent was obtained after reading an advisory that incorrectly informed him he could face criminal penalties for refusing to undergo further testing, the results must be suppressed under Ryce and Nece. However, the Court of Appeals held the error was harmless because Braun was charged with an alternative count of being under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle and there was sufficient evidence to convict him of the alternative charge. 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; and 2) the Court of Appeals violated Braun’s constitutional right to be proven guilty beyond a reasonable doubt by a trier of fact when it upheld Braun’s conviction by finding he could have been convicted of an alternative count for which he was not convicted.

    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 sheriff's deputy later read Heim the statutorily required implied consent advisories. 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. 117,496: State of Kansas v. Brian Joshua Lutz

    Shawnee County: (Petition for Review) Topeka police officers observed a driver commit a traffic infraction. The driver was slow to respond to the traffic stop. Backup officers were called in, including a canine unit. While one officer completed writing the warning citation, the other officers began removing the vehicle occupants for a canine search of the vehicle. When an officer opened Lutz’s door, he observed a marijuana grinder in the door pocket. The canine search was called off, the vehicle was searched, and drugs and drug paraphernalia were located. Lutz moved to suppress the evidence, arguing officers unlawfully extended the duration of the traffic stop to initiate the canine search. The district court denied the motion, finding one officer was still working on completing the warning citation while the other officers began the process for the search. As a result, the duration of the traffic stop was not extended when the marijuana grinder was located. The Court of Appeals affirmed. Issues on review are whether: 1) the police officers deviated from the mission of a traffic stop in order to plan and prepare a drug dog search and unreasonably extended the stop in violation of the Fourth Amendment and Section § 15 of the Kansas Constitution Bill of Rights; and 2) the Court of Appeals decision was in conflict with State v. Jimenez, 308 Kan. 315 and Rodriguez v. U.S., 135 S.Ct. 1609.

    Appeal No. 118,091: State of Kansas v. Grady A. Kornelson

    Reno County: (Petition for Review) Kornelson appeals his convictions for driving under the influence and illegal transportation of liquor. Kornelson argues his retrial following a mistrial violated his double jeopardy rights and the burden of proof instruction used during his second trial was clearly erroneous because it discouraged the jury from exercising its powers of nullification. The Court of Appeals affirmed Kornelson’s convictions, finding when the district court declared a mistrial and the defendant did not object, the manifest necessity standard was not applicable. The Court of Appeals also held the burden of proof jury instruction was not clearly erroneous and the use of the word “should” in the standard instruction for the burden of proof is proper and does not prohibit jury nullification powers. Issues on review are whether the Court of Appeals erred: 1) in failing to apply the manifest necessity standard to Kornelson’s double jeopardy claim; and 2) in finding the district court’s instruction on reasonable doubt did not impermissibly discourage the jury from exercising its power of nullification.

    Appeal No. 118,712: Fairfax Portfolio LLC v. Carojoto LLC, Rosana Privitera Biondo, Anthony Privitera II, and Carl Privitera

    Wyandotte County: (Petition for Review) Through a succession of assignments from the original lender, Carojoto LLC became the holder of a promissory note, mortgage, and other security documents encumbering commercial real estate in Wyandotte County owned by Fairfax Portfolio LLC. Fairfax was in default, so Carojoto entered the property and took possession, excluding Fairfax. Carojoto later filed an action to foreclose on the property and was granted judgment. In a subsequent suit against Carojoto, Rosana Biondo, Anthony Privitera II, and Carl Privitera, Fairfax claimed occupation of the property by Carojoto before seeking authority from the court was wrongful and caused it damages. Fairfax appealed from the district court's order granting Carojoto's motion to dismiss those claims. The Court of Appeals reversed and remanded, finding the district court must view Fairfax’s petition in the most favorable light along with facts and reasonable inferences that may be drawn from those facts. Issues on review are whether: 1) Carojoto had a right of possession; 2) Fairfax’s agreement to allow Carojoto to have possession upon default violated public policy; and 3) the Court of Appeals erred in failing to enforce the limitation of liability provision of the mortgage.

    Appeal No. 119,087: Gary Woessner, deceased, v. Labor Max Staffing and XL Specialty Insurance Co.

    (Workers Compensation) Woessner was injured when he fell off a catwalk at his jobsite. He was taken unconscious to an emergency room. Urine was taken from him by a catheter, and a toxicology screen revealed the presence of marijuana. Woessner appears to never have regained consciousness and died a few months later. Woessner’s widow sued Labor Max Staffing and XL Specialty Insurance Co., seeking death benefits under the Kansas Workers Compensation Act. After the suit was filed, the respondents sent the preserved urine sample to LabCorp for additional testing, which also revealed the presence of marijuana. The administrative law judge found the evidence established the presumption Woessner was impaired at the time of the injury and the claimant failed to rebut that presumption. The judge concluded the respondents did not owe any further payments to the claimant. The claimant appealed to the Workers Compensation Appeals Board. The board held the results of LabCorp’s test were not admissible. The respondents appealed to the Court of Appeals. A majority of the Court of Appeals panel held the board abused its discretion by finding the LabCorp evidence was inadmissible. The majority reversed and remanded to the board for further proceedings. The dissent opinion argued the majority erred in its interpretation and application of K.A.R 51-3-5a. Issues on review are whether the Court of Appeals erred: 1) in holding K.A.R. 51-3-5a did not prevent the admission of unfounded medical evidence in a regular hearing; 2) in finding the appeals board abused its discretion in denying admission of the lab-test results; and 3) in holding there was no clear and convincing evidence the claimant rebutted the presumption of impairment.

    Appeal No. 119,228: In the Matter of Tax Equalization of Target Corp., Board of County Commissioners of Johnson County v. Target Inc.

    (Board of Tax Appeals) This taxation case stems from the ad valorem valuations of three Target stores in Johnson County for the 2016 tax year. The taxpayer brought the issue before the Board of Tax Appeals. After a hearing, the Board of Tax Appeals issued a summary decision significantly reducing the valuation of the properties at issue. In February 2018, the taxpayer filed a request for the Board of Tax Appeals to issue a full and complete opinion. In March 2018, the taxpayer withdrew, via email, its prior request for a full and complete opinion. The county objected to the taxpayer’s withdrawal and requested an issuance of a full and complete opinion and, alternatively, reconsideration of the summary decision. The Board of Tax Appeals rejected the county’s objection and denied the motion for reconsideration. The Board of Tax Appeals did not officially grant the taxpayer’s withdrawal of the prior request, but it did not issue a full and complete opinion. The county appealed and the Court of Appeals involuntarily dismissed on the basis it lacked jurisdiction to hear the appeal because the Board of Tax Appeals’ order is final only after the issuance of a full and complete opinion. Issue on review is whether the Court of Appeals erred in determining it lacked jurisdiction because a full and complete opinion had not been entered by the Board of Tax Appeals.

    Appeal No. 119,315: State of Kansas v. Brent J. Carter

    Sedgwick County: (Criminal Appeal) After a gang-related shooting resulted in the deaths of Betty Holloman and Brenton Oliver, a jury convicted Carter of two counts of first-degree murder, two counts of criminal discharge of a firearm, one count of aggravated battery, and one count of criminal threat. The trial court sentenced Carter to consecutive terms of 25 years to life in prison. Issues on appeal are whether the district court erred: 1) by failing to provide the jury with a requested instruction on aiding and abetting and distinguishing mere presence and association; and 2) by granting the State’s motion to consolidate the aggravated battery and criminal threat complaint with the felony murder charges for purposes of trial.

    Appeal No. 119,745: In the Matter of P.R., a minor child

    Shawnee County: (Petition for Review) T.R., the natural mother of P.R., seeks review of the Court of Appeal’s decision to affirm the district court’s termination of T.R.’s parental rights and placement of P.R. with his foster parents for adoption. T.R. raises multiple issues, most of which deal with her argument the Kansas Department for Children and Families was required to sign her voluntary relinquishment of rights in order for the relinquishment to be effective. Issues on review are whether: 1) the Department for Children and Families was required to sign the natural mother’s voluntary relinquishment of rights under K.S.A. 38-2268(b)(1); 2) the natural mother’s voluntary relinquishment of rights was knowingly made; 3) the natural mother’s due process rights were violated because the Department for Children and Families was required to sign the relinquishment; 4) the district court strictly construed K.S.A. 38-2268; 5) the district court entertained the adopted parents’ motion to rescind the Department for Children and Families’ authority after dismissing the natural mother and her attorney from a hearing; 6) the Department for Children and Families could take away the natural mother’s authority to consent; and 7) the district court proceeded with the adoption under K.S.A. 38-2270 when the mother’s parental rights had not been properly terminated.

    Appeal No. 119,993: State of Kansas v. Andrew Lynn Gibson

    Riley County: (Criminal Appeal) Gibson was charged with the first-degree murder of his ex-girlfriend’s four-month-old son, SNR. It was the State’s theory Gibson was trying to play video games and became annoyed and angry when SNR would not stop crying, so he shoved the child's face into a couch. The first trial ended in a mistrial. A second jury convicted Gibson of first-degree murder and abuse of a child. The district court sentenced him to a hard-25 life sentence and also imposed lifetime postrelease supervision. Issues on appeal are whether: 1) the State presented sufficient evidence to sustain Gibson’s convictions for felony murder and abuse of a child; 2) the district court committed reversible error in allowing the State to elicit testimony from the expert witness concerning matters discussed with Gibson that were not disclosed in his report; 3) the district court erred when it instructed the jury on the burden of proof by failing to instruct the jury it had the discretion to acquit Gibson; 4) cumulative error denied Gibson a fair trial; and 5) the district court erred in imposing lifetime postrelease supervision rather than lifetime parole.

    Appeal No. 120,046: State of Kansas v. Shelbie Ellis

    Lyon County: (Petition for Review) In January 2018, police were called to conduct a welfare check on Ellis, who had been in the bathroom of a convenience station for 45 minutes. After she opened the door, officers requested her driver’s license and sent the number to the dispatcher. Before returning the license, the officer began questioning her about her travel plans. The officer noticed Ellis’ hands were shaking, but she denied using drugs. Ellis did not consent to any search. The dispatcher returned information Ellis had a potential outstanding warrant in Rice County. The officer arrested Ellis, and she told the officer she had methamphetamine in her purse. When the dispatcher confirmed the warrant, officers found methamphetamine and a pipe in her purse. The district court denied Ellis’ motion to suppress the drug evidence and rejected her argument the search exceeded the scope of the welfare check by retaining her driver's license and checking for warrants after concluding she was not in need of assistance. The district court stated the interaction was not improper, Ellis had voluntarily given her license, and the officer was free to conduct a records check. However, the court applied the attenuation doctrine and held the discovery of the warrant justified the arrest and search. Ellis appealed. The Court of Appeals agreed with Ellis, determining there was a violation of Ellis’ state and federal constitutional rights and found the district court erred in denying the motion to suppress. Issues on appeal are whether: 1) the Court of Appeals erred in overturning the district court’s denial of Ellis’ motion to suppress; 2) conducting a computer check through dispatch equates to a detention if that act does not detain an individual or prolong the encounter; and 3) the attenuation doctrine applies to welfare checks.

    Appeal No. 120,390: State of Kansas v. David Patrick McNabb

    Linn County: (Criminal Appeal) McNabb pleaded no contest to two counts of first-degree murder and one count each of theft and interference with law enforcement. McNabb admitted to killing his uncle and grandmother and then burying their bodies in rural Pittsburg. McNabb moved for a downward departure to a hard-25 life sentence based on his lack of prior felony convictions, his age and immaturity, and the wishes of the victim’s family. The district court denied McNabb’s motion for departure and sentenced him to two consecutive terms of life imprisonment without the possibility of parole for 50 years for the murder charges and concurrent terms on the other convictions. Issue on appeal is whether the district court abused its discretion in finding a lack of substantial and compelling reasons to order a downward departure.

    Appeal No. 120,414: State of Kansas v. Cortez Tyrell Timley

    Shawnee County: (Criminal Appeal) Timley was convicted of the drive-by shooting of Jermel Robbins in southeast Topeka. Cell phone tower mapping was used to place the car Timley was riding in at the scene of the crime. A jury convicted Timley of first-degree murder. He was sentenced to a hard-25 life sentence. Issues on appeal are whether: 1) the State committed prosecutorial error by misstating the evidence and arguing for a conviction based on unreliable evidence admitted at trial; 2) the district court erred in allowing a detective to testify as to the cell towers used and then admitting multiple exhibits mapping the cell towers that were accessed by the cell phone linked to Timley; 3) the district court erred in failing to instruct the jury on the lesser crime of second-degree murder; 4) the district court violated Timley’s due process rights by failing to instruct on any lesser included offenses; and 5) cumulative error denied Timley a fair trial.

     

  • 30 Apr 2020 8:22 AM | Amanda Kohlman (Administrator)
    Jerome Hellmer

    Jerome Hellmer

    Chief justice reappoints Jerome Hellmer to Kansas Government Ethics Commission

     

    TOPEKA — Chief Justice Marla Lucker reappointed Jerome Hellmer, a retired judge, to the Kansas Government Ethics Commission.

    Hellmer’s term runs through January 2022.

    Hellmer has served on the ethics commission since his January 2015 retirement as chief judge of the 28th Judicial District, which is composed of Saline and Ottawa counties. He had served as a district court judge since 1996 and chief judge since 2011. Before he was appointed judge, Hellmer practiced law in Salina for 22 years.

    The nine-member Kansas Governmental Ethics Commission is charged with administering, interpreting and enforcing the state's Campaign Finance Act and laws relating to conflicts of interest, financial disclosure, and lobbying regulation. These laws establish the public’s right to information about the financial affairs of Kansas’ public officials, lobbyists, and candidates for office. The commission also renders advisory opinions and can adopt rules and regulations under a less comprehensive conflict-of-interest law covering local government officials and employees.

    The chief justice appoints one member of the commission. The governor appoints two members, and the secretary of state, attorney general, Senate president, House speaker, Senate minority leader, and House minority leader each appoint a member.


  • 29 Apr 2020 8:27 AM | Amanda Kohlman (Administrator)
    Amber Smith

    Amber Smith

    Chief justice appoints Amber Smith to Kansas Criminal Justice Coordinating Council

     

    TOPEKA—Chief Justice Marla Luckert appointed Amber Smith as her designee on the Kansas Criminal Justice Coordinating Council.

     

    Smith succeeds Justice Caleb Stegall, who previously served in this role.

     

    Smith joined the judicial branch's Office of Judicial Administration as deputy judicial administrator in July 2019. She previously was chief litigation counsel for the Kansas Corporation Commission. She is a graduate of Washburn University School of Law and holds a bachelor's and a master's degree in business administration and a bachelor's degree in economics, all from Washburn University.

     

    The Kansas Legislature created the Kansas Criminal Justice Coordinating Council in 1994. The council:

    • develops and oversees reporting of all criminal justice federal funding available to the state or local units of government; and
    • oversees management of the criminal justice information system.

    Other council members include the governor or designee, the attorney general, the secretary of corrections, the superintendent of the Kansas Highway Patrol, and the director of the Kansas Bureau of Investigation.



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