Kansas Supreme Court Decisions, August 5, 2022

05 Aug 2022 10:58 AM | Executive Director (Administrator)

Appeal No. 122,039: State of Kansas v. Johnny C. White

Appeal No. 122,039 archived oral argument

The Supreme Court affirmed White's conviction for aggravated indecent liberties with a child. White argued four grounds for reversal on appeal: First, that his right to present a defense was violated by the Sedgwick County District Court's exclusion of the fact that he took a polygraph; second, that the district court abused its discretion when it permitted the State to amend the date range of his offense based on the victim's trial testimony; third, that the admission of a videotaped confession White gave in 2014 regarding a prior similar crime was reversible error; and lastly that cumulative error denied him a fair trial. Justice Stegall, writing for a unanimous Court, agreed with the Court of Appeals that even if admission of the videotaped confession was an error, it was harmless given the other evidence presented at trial. The Court found no other trial errors and affirmed White's conviction.

Appeal No. 124,415Mark A. Bruce v. Laura Kelly, in her official capacity as governor of the State of Kansas; Will Lawrence, in his individual capacity as Chief of Staff to Governor Laura Kelly; and Herman T. Jones, in his official and individual capacities as Superintendent of the Kansas Highway Patrol

Appeal No. 124,415 archived oral argument

The Supreme Court heard this case on a special evening docket April 6 in Great Bend.

The Supreme Court answered two certified questions arising from a federal lawsuit filed by former Kansas Highway Patrol Superintendent Bruce against Gov. Kelly, Kelly's chief of staff, and the current Kansas Highway Patrol superintendent. Bruce claims he was forced to resign from the Kansas Highway Patrol after his term as superintendent ended, even though a Kansas statute, K.S.A. 74-2113, granted him the right to continued employment at his former rank of major. The defendants moved to dismiss Bruce's lawsuit, arguing Bruce had no right to continued employment with the Kansas Highway Patrol.

The U.S. District Court for the District of Kansas determined the merits of the motion to dismiss turned on two legal questions for which there was no controlling Kansas precedent, and thus certified those two questions to the Kansas Supreme Court. First, because only employees in classified positions in the Kansas civil service have a right to continued employment, the federal district court asked whether K.S.A. 74-2113 defines the rank of major within the Kansas Highway Patrol as a classified or unclassified position. Second, because employees serving a probationary period do not have a right to continued employment, the federal district court asked whether a Kansas administrative regulation, K.A.R. 1-7-4, would have required Bruce to serve a probationary period upon returning to his former rank of major.  

In a decision written by Justice K.J. Wall, the Court held that K.S.A. 74-2113 defines the rank of major as within the classified service. The Court also held that if Kansas Highway Patrol employees attain permanent status in the classified service before being appointed to superintendent or assistant superintendent, then K.A.R. 1-7-4 does not require them to serve another probationary period after returning to their former rank and classification under K.S.A. 74-2113. Chief Justice Marla Luckert concurred in the result.

Case No. 124,867: In the Matter of Joseph R. Borich III

Case No. 124,867 archived oral argument

Borich, an attorney residing in Leawood, Kansas, represented a couple in prosecuting claims against their homebuilder for alleged defects in the construction of their new house. Litigation, including mediation, arbitration, actions in both federal and state district court, and attempted appeals to the Kansas Court of Appeals, went on for over a decade, and the defendant eventually prevailed in all forums. Following a complaint to the Disciplinary Administrator, a disciplinary hearing panel found, among other violations, that Borich failed to represent the plaintiffs competently, charged the plaintiffs unreasonable fees, failed to account for how the fees were generated, and engaged in dishonest communications with his clients. The panel recommended suspension for 90 days and reimbursement to his clients of $21,900 in attorney fees. Borich filed no exceptions to the panel’s report.

The Supreme Court disagreed with the hearing panel’s recommended discipline and imposed a one-year suspension from the practice of law. The Court also ordered Borich to refund $47,000 in attorney fees to his clients. The Court provided for a stay on the suspension if Borich repays the fees within 90 days of the suspension.

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