court watch - kmja.org-topeka cheryl kingfisher -emporia ted hollembeak 2006 conference reminders...

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Sticks and stones may break my bones, but words can never hurt me…but they can bring me lots of money. Such was the case in 1865 when John T. Swartzel, under circum-stances which were not delineated in the case, said to Annis Dey, “Shut your mouth you damned whore.” The civil slander case was tried to a Wyandotte County jury, which returned a verdict for Mrs. Dey to the tune of $2,500. The verdict was set aside as excessive and the case was tried again. This time the jury awarded Mrs. Dey $2,000. The trial court let the verdict stand, and Swartzel appealed to the Kansas Supreme Court.

In the appeal, Swartzel first argued that the ver-dict was not supported by the evidence. We all know truth is an absolute defense. Evidence was presented that Mrs. Dey and her husband owned a small hotel wherein they resided with “two lewd women” who often resorted to acts of public prostitution at the hotel. However, the Supreme Court held that there was insuffi-cient evidence that Mrs. Dey was such a woman herself. In fact there was evidence presented by one witness that her character for chastity was good. Therefore, the verdict was upheld with regards to sufficiency of the evi-dence. Swartzel next argued that the damages were

excessive. Even if there was insufficient evidence of the (Continued on page 4)

Tom Herlocker, Winfield, has the law in his blood. He was born and raised in Winfield, the son of an attorney. His only sibling, a brother, is also an attorney. One of his daughters is an attorney and another one works in his office as the chief receptionist. He states that he wanted to be an attorney for as long as he can remember and truly loves the practice of law. After graduating from Winfield high school, Tom went on to Stanford University for a year and then came home

If you would like to submit an article or would like to see a topic addressed, please send it to Judge Arnold-Burger.

Issue 29 Winter 2006 The Official Publication of the Kansas Municipal Judges Association

SPOTLIGHT ON: Tom Herlocker

to attend KU. He received an undergraduate degree in Eng-lish, and followed that immediately with a Law Degree. He returned home to Winfield and entered the general private practice of law, where he remains today with his brother and his daughter. Tom was first elected as a City Court Judge back in the late sixties. These positions in some areas had countywide “magistrate” type jurisdiction. In 1971 he was appointed to be

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The following are cases that have been decided since our last issue that may be of interest to municipal judges. Only the portion of the case that may relate to issues that arise in municipal court are discussed. Members are encour-aged to read the whole opinion.

A PERSON CAN BE CONVICTED OF A LESSER INCLUDED OFFENSE EVEN IF THE ORIGINAL

OFFENSE IS FOUND TO BE DEFECTIVE In State v. Johnson, __Kan.App.2d___ (November 4, 2005), Johnson was charged with aggravated indecent liberties with a child by soliciting the child to engage in lewd fondling or touching in violation of K.S.A. §21-3504(a)(3)(B). It was clear after trial that the evidence did not, in fact could not, support the charge due to a legal impossibility. The prosecutor charged under the wrong subsection of the statute. However, the jury found the defendant guilty of the lesser included offense


MARK YOUR CALENDAR

FOR APRIL 24-25 AND JOIN US IN WICHITA!

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▲▲▲▲

ANNUAL MUNICIPAL COURT JUDGES’ CONFERENCE

The 2006 Conference will be held April 24-25 at the Wichita Marriott Hotel. The agenda includes the following topics: Phar-macology and Treatment, Updates from the DMV, Nuts and Bolts Program, Judicial Independence, Fine Collection, and Judi-cial Ethics and Self-Represented Litigants. A night-out event will be held on Monday evening at the Prairie Rose Chuck-wagon. The evening will include a barbecue buffet and a performance by the world famous Prairie Rose Wranglers. Ad-vanced reservations and tickets are required. If you have questions re-garding the conference arrangements, please con-tact Denise Kilwein of the Office of Judicial Admini-stration at 785-296-2256.

ANNOUNCING NEW JUDGES!!

Since our Fall 2005 issue, the following new municipal judges have been appointed or elected: -Coffeyville Richard Medley -Fredoina John Chenoweth -Topeka Cheryl Kingfisher -Emporia Ted Hollembeak

▲▲▲▲ 2006

CONFERENCE REMINDERS

Municipal Court Clerks’

Spring Conference April 7, 2006

Salina, KS

Municipal Judges’ Annual Conference

April 24-25 , 2006 Wichita, KS

District Judges’

Spring Conference June 12-13, 2006

Overland Park, KS

Municipal Court Clerks’ Fall Conference

September 14-15 , 2006 Topeka, KS

the Winfield Municipal Court judge where he has remained ever since. Winfield Municipal Court meets once a week on Monday afternoons. Tom likes the “different perspective of law, people and cases” he gets while judging. If he had to choose between the two, is primary passion is still about being a lawyer, but he believes that seeing things from a judge’s perspective makes him a better lawyer. “I became a lawyer because I wanted to help people, and although it sounds strange, I really do get an opportunity to do that as a judge.” Tom likes to hunt and fish and he and his wife of 45 years, Judy, have traveled extensively. They have three daughters and 11 grandchildren. One of his daughters is an attorney and practices along side Tom and his brother. He has served in many capacities with various community organizations in and around Winfield. He currently sits on the Board of the Wil-liam Newton Hospital in Winfield and is a deacon in the Epis-copal church. He has also served his profession as President of the Kansas Bar Foundation. Tom has been a member of the KMJA since he began his judi-cial career. “I remember even when there was no formal ‘education’ program, we often educated each other just by sharing stories and procedures. I always enjoy the annual conferences and find the educational component to be very helpful. I love hanging out with my old friends.”

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Spotlight on: Updates from O.J.A.

The Verdict

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The Verdict

Judicial Ethics Opinion JE 132 November 2, 2005

A judge inquires whether judges may ethically contrib-ute to the Kansans for Impartial Courts Committee of the Kansas Appleseed Center for Law and Justice. Judges may not solicit funds or make a contribution to a political organization. Canon 5A(1)(e), 2004 Kan. Ct. R. Annot. 558. Therefore, we must first determine whether Kansas Appleseed is a “political organization.” We are informed that the mission of Kansas Appleseed “is to advo-cate for systematic changes that focus on the roots of prob-lems facing Kansans.” Currently, the focus of the Commit-tee is on judicial selection reform. “Political organization” is defined in the definitions sec-tion of the Canons as “a political party or other group, the principal purpose of which is to further the election or ap-pointment of candidates to political office.” 2004 Kan.Ct.R.Annot. 538. Clearly, Kansas Appleseed and its Committee for Impartial Courts are not political organiza-tions. In 1984, we were asked several questions which arose when Kansas was considering changing the selection of district judges. Our opinion, JE 5 (1984) states: “Judicial Ethics Opinion JE-5 The questions submitted pertain to permissible activities by judges in connection with a proposition relating to the method of selection of district judges of a judicial district which will appear on the ballot of the district at the Novem-ber 1984 general election. The questions submitted are as follows: Question No. 1: May a judge speak in favor of such a proposition for civic groups? Question No. 2: May a judge support such proposition in response to media or voter inquired? Question No. 3: May a judge serve on a citizens’ commit-tee supporting such proposition? Question No. 4: May a judge may a monetary contribution to such citizens’ committee?

Judicial Ethics Opinions

Question No. 5: May a judge’s name be allowed to appear on advertisements which support such proposition? Question No. 6: May a judge solicit support of citizens (not before the court) for such proposition? Answer: Yes, to each of the above questions. The method of judicial selection directly impacts upon the administration of justice within the contemplation of Canon 4 of the Code of Judicial Conduct. It is our opinion, therefore, that judges may participate in the activities set forth in the questions sub-mitted. Within the relevant restraints of Canon 4, 5, and 7, a judge may take a position and engage in the activities in sup-port of or in opposition to the two methods set forth in such proposition.” The applicable Canons were substantially the same then as now. See 1984 Canon 4, 5, & 7, 235 Kan. clxvii, clxx and present Canon 4C(1), 2004 Kan.Ct.R.Annot. 550; Canon 5A(1), 2004 Kan.Ct.R.Annot. 558; and Canon 5C, 2004 Kan.Ct.R.Annot. 561. We rely on our Opinion, JE 5, an conclude that judges may contribute to the Kansans for Impartial Courts Commit-tee of the Kansas Appleseed Center for Law and Justice. However, judges may not solicit funds for the Committee. See JE 5A (1984).


This website, out of Springfield, Missouri is located at:

http://www.ustraffictickets.com/default.htm Here is the pitch: “For years, people “in the know”have hired attorneys to appear in court for them and keep traffic violations from appearing on their records. Now, through this site, you can quickly, easily and with peace of mind hire an attorney to represent you on your traffic ticket or other municipal summons and, in most cases, never have to leave your home.”

What is Kansas Appleseed Center for Law

and Justice? See page, 14

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A judge owns a number of law books, acquired during the judge’s practice of law and prior to appointment or election to the bench. The judge would like to sell the books, and an at-torney who occasionally appears before the judge is a possible buyer. The judge states that the sale will be “at something akin to fair market value, whatever that may prove to be.” What Canons — if any — apply? Canon 4D(1)(b) prohibits frequent transactions between a judge and lawyers likely to come before the court. The pro-posed transactions would be an isolated sale, at market value which would not be a violation of the Canons.


Question: May a judge work as a volunteer at a concession stand at a sporting event in which teams from the judge’s chil-dren's school participate? Discussion: A portion of the profits go to school-related groups. The judge is not identified by name or occupation, though a few customers may recognize the judge and know what he or she does for a living. Canon 4C(4)(b) provides that “A judge should not solicit funds for any educational...organization, or use or permit the use of the prestige of office for that purpose…” The issue here is whether the judge, as a volunteer at a con-cession stand where candy, soft drinks, sandwiches and similar items are sold at retail, is soliciting funds. Whether the profits go to the local retailer or to the school-related organizations is immaterial; the activity described is not a solicitation. To so-licit means to entreat, ask earnestly or urge another (for funds.) From the facts presented here, there is no solicitation. Cus-tomers merely state what items they want, and pay the listed price. See also JE 78, where we held that preparing and serv-ing a meal as a “celebrity chef,” to be auctioned for charity, was not a direct solicitation of funds.”


The Verdict Judicial Ethics Opinion JE 135 December 29, 2005

A district magistrate judge inquires whether he or she may bid at public auction and possibly buy a tract of land being sold at Sheriff’s sale as the result of a foreclosure action. The district magistrate judge had nothing to do with the foreclosure action, has no jurisdiction over such an ac-tion, and did not know of the action until reading the pub-lished notice of sheriff’s sale. The foreclosure action is in the district court on which the district magistrate serves. In Judicial Ethics Advisory Opinion JE 124, issued De-cember 6, 2004, we considered a matter in which an estate was opened by Judge A, and the fiduciary proposed to sell land at public auction. The judge asked if he or she might bid at auction and buy the land. We said no: “Whether it is a private sale or public auc-tion, a judge should not buy assets from an estate which is pending in a court upon which the judge is sitting.” The matter now before us is not an estate sale; it is a foreclosure sale. The inquiring district magistrate judge has had nothing to do and could have nothing to do with the foreclosure proceeding. The district magistrate judge could neither approve nor disapprove the sale, or direct or deny the issuance of a sheriff’s deed. Such matters lie exclu-sively with district judges. See K.S.A. 2004 Supp. 20-302b(5). We conclude that bidding at a public auction arising out of a foreclosure action could not “reasonably be perceived to exploit the (district magistrate) judge’s official position.” Canon 4D(1), 2005 Kan.Ct.R.Annot. 571. Neither does such action give the appearance of impropriety. Canon 2A, 2005 Kan.Ct.R.Annot. 559.

Judicial Ethics Opinions

A Step Back in Time

truth of the words to prove justification, the facts could at least be used in mitigation of damages. (Two thousand dol-lars in 1865 is the equivalent of $25,000 today, using con-sumer price index/inflation estimates.) The Supreme Court agreed. The Court noted that “[t]here is probably no class of cases where a jury are more liable to improper excite-ment, and to be controlled by impulse rather than by sober and unimpassioned judgment, than in slander.” But after all, Mrs. Dey remained married throughout the pendency of the lawsuit, thus rebutting the idea that her character had been materially injured. (The Court was assuming her husband would have divorced her if he thought she was “a whore.”) It was not disputed that these two “lewd women” inexplica-bly lived “as inmates with the plaintiff’s family.” Therefore, “the verdict for $2,000 is evidence that it was the result of some unaccountable prejudice.” The jury was not justified

in “such a large sum.” Swartzel gets a third trial. Swartzel v. Dey, 3 Kan. 244 (1865).


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of aggravated indecent solicitation of a child under K.S.A. §21-3511. He argued that the Court was without jurisdiction to enter a finding on a lesser included offense, when the primary offense is not appropriate to the facts. The Court of Appeals dis-agreed. Lesser included offense instructions are given pre-cisely because the evidence may not support a conviction un-der the more severe offense.

COURT MUST GIVE SURETY NOTICE OF NEW CONDITIONS ON A REINSTATED BOND AND SURETY

MUST AGREE TO BE BOUND BY THEM OR THE COURT CANNOT ENFORCE A SUBSEQUENT FORFEITURE

Tyler Sedam was released on a $10,000 surety bond on a drug charge. He failed to show up for his preliminary hearing and the bond was ordered forfeited and a new warrant was issued. Three days later the defendant showed up and on the defen-dant’s motion the Court reinstated the defendant’s bond. However, on the prosecution’s request, the Court added a con-dition that the defendant be placed on pre-trial supervision and report regularly to the pretrial services office. The surety com-pany was not notified of this modification. A month later the defendant tested positive for drugs and failed to show up for his scheduled appointment with pre-trial services. The Court ordered his bond forfeited and issued a new warrant. At a hearing on the bond forfeiture judgment that the Court had entered, the surety argued it was not respon-sible for the forfeiture because it had not been notified of the change of the conditions and given an opportunity to elect to stay on the bond or not. In State v. Sedam, ___Kan.App.2d ___(November 4, 2005), the Kansas Court of Appeals agreed with the surety company. It held that an appearance bond is a contract between the prin-cipal and the surety on the one hand and the State on the other. It is the responsibility of the surety to know the whereabouts of the defendant, to watch the court’s calendar, and to see that the defendant appears as ordered. But a material modification which alters the surety’s obligation will discharge the surety. The modification made by the Court was not unreasonable, but it was material. A material change is defined as a change that a careful and prudent person would regard as substantially increasing the risk of loss. In this case, the surety company’s risk increased greatly because it created more reasons and op-portunities for the bond to be revoked. The surety should have been given an opportunity to reconsider the risk and decide if it wanted to stay on the bond. “By reinstating a forfeited bond with new conditions with no notice to the surety, the court in fact rewrote the bond and


The Verdict gave the surety no opportunity to evaluate whether he wanted to assume the increased risk of forfeiture. Imposing a money judgment under such facts is an abuse of discre-tion.”

A LAWYER’S FAILURE TO FORESEE A CHANGE IN THE LAW MAY BE THE BASIS FOR AN INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIM Aaron Laymon pleaded guilty to one count of conspiracy to manufacturer methamphetamine. He was sentenced to a drug severity level 1 felony, with 132 months in prison. His public defender filed an appeal of the sentence to the Kan-sas Court of Appeals. At that time two main arguments were being made by the public defender’s office. First, that he was entitled to be sentenced as a misdemeanant under K.S.A. §65-4127c because the charges were identical and he gets the benefit of the lesser penalty. The Court of Ap-peals had ruled against this in State v. Luttig, 30 Kan.App.2d 1125 (2002) and the Supreme Court had de-clined to take the case. The Court of Appeals also rejected this argument in State v. Layton, 31 Kan.App. 2d 350 (2003), but the Supreme Court had not yet decided whether to take the case. And second, that he should have been sen-tenced as a severity level 3 felon under K.S.A. §65-4161. The Court of Appeals had also rejected this argument in State v. McAdam, 31 Kan.App.2d 436 (2003), but again the Kansas Supreme Court had not yet decided whether it was going to take the case. In other words, even though these arguments had received an icy reception from the Kansas Court of Appeals, the Kansas Supreme Court had not re-jected them yet. Mr. Laymon’s attorney spent most of his appellate brief making the Luttig/Layton argument, with just a short men-tion of the McAdam argument. Referring to Laymon’s at-torney’s lack of emphasis on the McAdam argument, the Kansas Supreme Court stated “It appears as meek hand-maiden to the brief’s central argument regarding misde-meanor sentencing under K.SA. 65-4127c; it bears no sepa-rate heading or other emphasis, merely bringing up the rear of the brief’s critique of a Court of Appeals version of Layton that was later modified.” The Supreme Court granted petitions for review of McAdam and Layton. In the meantime, Laymon’s case is at the Court of Appeals. To no one’s surprise, the Court of Appeals followed Luttig, Layton and McAdams and rejected Laymon’s arguments. McAdam still had not been decided by the Supreme Court, however shortly before the decision was issue in Laymon’s case, the Supreme Court decided Layton rejecting misdemeanant sentencing in Laymon’s type situation. Subsequently, the Kansas Supreme Court reversed the Kansas Court of Appeals in McAdam and found that someone in Laymon’s situation should be sen-tenced as a severity level 3 not a severity level 1. Lay-mon’s lawyer filed a petition for review focusing on the


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McAdam decision. The Supreme Court denied the petition on the basis that Laymon had not adequately preserved the McAdam issue before the Court of Appeals. Laymon then filed a habeas corpus action alleging ineffective assistance of counsel due to his attorney’s failure to argue the McAdam issue strongly enough thereby resulting in the denial of his petition for review before the Kansas Supreme Court. (Confused?) In a fairly harsh decision as it relates to Mr. Laymon’s pub-lic defender, accompanied by some very strong language and assumptions regarding his legal ability, the Kansas Su-preme Court held in Laymon v. State, ___Kan. ___(November 10, 2005) that Laymon’s public defender’s per-formance was objectively unreasonable. Even though McAdam had not yet been decided by the Court, given that his colleagues at the Kansas Public Defender’s Office were all pursuing the McAdam line of argument, he could be “charged with knowledge of the exact status of the law at the time” and the potency of the McAdam argument as op-posed to the weaker Layton argument. His McAdam argu-ment in his brief was minimal and legally insufficient (even though it turned out to be the right argument…he appar-ently did not argue it strongly enough. A mere mention of it is not sufficient to preserve it as viable). This prejudiced the defendant because had he pursued this line more aggres-sively the client would have been entitled to resentencing at a severity level 3. Therefore, the Court vacates Laymon’s sentence and remands his case for resentencing based on McAdam as a severity Level 3. This decision should send some shudders through the bar and malpractice insurance carriers.

SUPREME COURT SETTLES ON “STRICT ELEMENTS”

TEST FOR DETERMINING MULTIPLICITY

Multiplicity is the charging of two or more counts in a com-pliant where only a single wrongful act is involved. The harm of multiplicity is that it creates the potential for multi-ple punishments for a single offense. (Offenses do not merge if they are committed separately and severally at different times and at different places.) Over the years two separate tests have developed to deter-mine multiplicity. The common-law “proof of facts” test is “whether each offense charged requires proof of a fact not required in proving the other.” If so, the offenses do not merge and are not multiplicitous. The “strict element” test is “whether each offense requires proof of an element not necessary to prove the other offense.” If so, the charges stemming from a single act are not multiplicitous. The “proof of facts” test focuses on proof of specific facts, whereas the “strict element” test focuses on the elements


The Verdict required by the statute. Recent appellate court decisions re-flect a mix of approaches. The Court seems to have deter-mined its approach based upon the arguments of the parties. In State v. Patten, ___Kan. ___ (November 10, 2005), the Kansas Supreme Court adopts for all future analysis the “strict element” test due to its logical, mechanical ease of operation and certainty. Michael Patten was convicted of manufacture of metham-phetamine and possession of drug paraphernalia. Using the “proof of facts” test the charges of possession of drug para-phernalia and manufacture of methamphetamine would be multiplicitous and therefore, merge because all facts proved for the possession charge were identical to some of the facts proved for the manufacture charge. However, under the “strict elements” test, the crime of manufacture of metham-phetamine requires proof of manufacture of methampheta-mine, which is not required for possession of drug parapher-nalia. Therefore, they do not merge. Since the Court chose to use the “strict elements” test exclusively from this point forward, the defendant’s convictions for both charges stand.

DEFENDANT CAN’T CLAIM ENTRAPMENT IF HE

DENIES ANY INVOLVEMENT IN THE CRIMINAL ACTIVITY

Defendant was alleged to have participated in the sale drugs to an acquaintance who was working undercover for the Sa-line County drug task force. It was alleged that he set up they buy over the phone and then drove to an arranged spot where the transaction took place between his passenger and the informant outside of his vehicle. During the trial he claimed that he was an unknowing participant, being just the driver of a car used to transport the person who actually sold the drugs to the undercover informant. After his conviction, the defendant argued that an entrapment instruction should have been given because it was the State’s agent that set the buy up over the phone. In State v. Lafleur, ___Kan.App.2d ___ (November 18, 2005) the Kansas Court of Appeals found that a defendant who refuses to admit involvement in an incident out of which a criminal charge arises cannot use entrapment as a defense. Since Lafluer argued he was not involved in the criminal activity at all (being just an innocent and unknowing by-stander), an entrapment instruction would not have been con-gruent with his defense. Entrapment is appropriate when a defendant admits the criminal conduct, but then argues it is excused due to entrapment. “WILLFUL” AND “INTENTIONAL” ARE SYNONYMOUS

Also in the Lafluer case, above, the State charged the defen-dant with “unlawfully, willfully and feloniously selling s stimulant drug, to wit: methamphetamine.” The defendant argued that since the State had not alleged “intentional” con-duct, the complaint was defective. The Court of Appeals


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agreed with the trial court and held that “willful” and “intentional” are synonymous. So, although many com-plaints charge that a defendant “willfully and intentionally” violated the law, such language is redundant. Either word is sufficient to set forth the necessary element of intent.

OFFICERS MAY FOLLOW A PERSON WITH AN OUTSTANDING FELONY WARRANT INTO A THIRD

PARTY’S HOME WITHOUT A SEARCH WARRANT Brandon Prouse tried to sell an informant anhydrous ammo-nia. Deputies discovered he had an outstanding felony ar-rest warrant. They staked out the house where they thought he might be found, although he did not own the home. When he stepped outside and walked into the front yard, uniformed deputies ordered him to stop. Instead he turned and ran back into the house. The deputies ran in after him pursuing him through several rooms before he was finally arrested. Once inside the house it became very apparent that a meth lab was in operation in the house. They saw large amounts of evidence in plain view as well as six other occupants in the house. The deputies ordered everyone out of the house due to the dangerous material they found inside. Outside, Steven Thomas admitted ownership of the house. During a pat-down, he told the officer he had dope and pointed to the pocket it was in. He later said the meth lab was his. Prior to trial he filed a motion to suppress on the basis that the officers had no right to enter his home without a warrant. The issue presented on appeal in State v. Thomas, ___Kan. ___ (December 9, 2005) is whether the Fourth Amendment to the United States Constitution or §15 of the Kansas Con-stitution Bill of Rights prohibit the entry of law enforce-ment officers into a home when officers are in hot pursuit of the subject of a felony arrest warrant who has fled from a public area into the house, even though the arrestee does not own or reside in the house, and even though the officer do not have a search warrant for the house. The Kansas Supreme Court proceeded with a step by step analysis of the warrant requirement and associated United States Supreme Court cases. It found that although an ar-rest warrant, standing alone, is not sufficient basis to enter the home of a third party, if the officer is in hot pursuit and the suspect starts out in a public place, then officers are justified in entering without a warrant. In other words, exi-gent circumstances may justify entry into an unrelated third party dwelling. Once lawfully inside, the officers were justified in seizing contraband in plain view.


The Verdict NOT DOUBLE JEOPARDY FOR STATE TO REFILE

CHARGE AFTER APPEAL FROM MAGISTRATE COURT RESULTS IN DISMISSAL BASED ON LACK OF

JURISDICTION Daniel Hanson was found guilty of DUI by a magistrate judge. He appealed to the district court judge. The district judge dismissed the charge on the ground that the complaint was jurisdictionally defective because it failed to charge him with being under the influence “to the degree that rendered him incapable of safely driving a vehicle.” The State refilled the charges against Hanson, this time properly alleging all the elements of the offense. Hanson filed a motion to dismiss on the basis of double jeopardy. The district judge denied the motion on the basis that the magistrate never had jurisdiction to hear the case, therefore jeopardy never attached. The Court of Appeals affirmed and the Kansas Supreme Court accepted an opportunity to rule on the issue in State v. Han-son, ___Kan. ___ (December 16, 2005). The Court upheld the Court of Appeals decision and held that this is similar to the situation in City of Salina v. Amador, 32 Kan.App.2d 548 (2004) which involved dismissal of a mu-nicipal court appeal. It found the rationale in Amador was controlling. The appeal vacates the conviction by the magis-trate court, “leaving no footprint” in the magistrate court. The prosecution starts over and jeopardy does not attach.

PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES MAY JUSTIFY THE WARRANTLESS SEIZURE OF A

LAPTOP COMPUTER, BUT SEARCH WARRANT NECESSARY TO SEARCH THE HARD DRIVE

Zeke was a surveillance director for Harrah’s Prairie Band Casino. He switched jobs and went to work for Sac & Fox Casino. He apparently brought some computer copies of documents he had access to and helped create at Harrah’s. He shared forms he had gained from Harrah's in an attempt to have Sac & Fox incorporate some of Harrah’s procedures. He did this in spite of a confidentiality agreement he had signed with Harrah’s. His position was that he had created the data basis, so in his opinion they belonged to him. He admitted he probably had some things on his computer that he shouldn’t have.

Rupnick denied investigators with the Kansas Gaming Commission access to his laptop, stating at first that he did not use if for work purposes. He later admitted he did have work information on it, but told the investigator there were things on there he did not want the investigator to see. The investigator seized the laptop, two

compact disks and a floppy disk, based on his fear that Rup-nick could quickly destroy information on it. The investiga-tor then obtained a search warrant to search the hard drive of the computer. Zeke Rupnick was charged with three fel-


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The Verdict The report also lists the criteria under which it believes judges should be evaluated. It suggests that attorneys, jurors, litigants, non-judicial court staff, social service personnel, witnesses and appellate judges all be given a chance to evalu-ate state trial judges, with a different performance question-naire for each respondent group. It also suggests “private evaluations” not available for public dissemination within the first year of taking office and again mid term, with a public evaluation following in sufficient time so that the results can be released prior to the election. Finally, it suggests mini-mum thresholds for response rates and number of respon-dents. The recommendation is unique in that it includes appellate justices in its scope. Attorneys who appear before the Kansas Court of Appeals and the Kansas Supreme Court, non-judicial court staff who have regular contact with the appel-late bench, other appellate judges and trial court judges whose decisions have been reviewed would all have a chance to comment on the justice’s performance. This is another example of our Kansas appellate courts taking the lead and not being afraid to hold their own performance up to scrutiny, clearly demonstrating the importance they place in judicial performance improvement. Finally, the Subcommittee stresses that the program should only be implemented if it can be adequately funded. It sug-gests that the program will cost approximately $800,000 per year, with partial funding obtained by adding $1 across the board to all filing fees. It anticipates the hiring of a Staff Attorney/Administrator, Administrative Assistant and Senior Judge to run the program in office space located off-site from the Kansas Judicial Center. The report includes proposed legislation codifying the Subcommittee’s recommendations.

In the Spring of 2005, the Kansas Judicial Council created

a subcommittee to study the con-cept of Judicial Performance Evalua-

tions in Kansas. Kansas Court of Appeals Justice Stephen D. Hill served as chair. The

committee met monthly through November 15, 2005. The final report was released December 2,

2005 and can be accessed in full at: http://www.kscourts.org/council/jud_perform_rpt.pdf

The Subcommittee recommended that Kansas implement a program of judicial performance evaluations for the purposes of providing information for self-improvement to all judges of the district court and appellate judges. It further recom-mended that the results from the program be disseminated to voters in the jurisdictions where judges and justices are sub-ject to retention elections to enable voters to make informed decisions about continuing judges and justices in office. To accomplish this, it recommends that a “Commission on Judicial Performance” be established as an independent com-mittee of the Kansas Judicial Council and that said Commis-sion be composed of non-lawyers, lawyers and judges or jus-tices who have outstanding competence and reputations. It also recommends that the Commission utilize experts in de-signing instruments and techniques to be utilized in the pro-gram to survey persons who have directly observed the per-formance of all Kansas judges and justices. With regards to the surveys, the Subcommittee recommended that they be dispersed, collected and tabulated in a confiden-tial manner and be designed to evaluate judges and justices in areas of legal ability, integrity, impartiality, communication skills, professionalism, temperament, administrative capacity and any other areas the Commission finds are appropriate. The plan would be for the Commission to develop perform-ance standards, a dissemination plan, a procedure for re-sponses to the evaluation of judges and justices and a mecha-nism to incorporate evaluations results in the design of judi-cial education programs. All rules adopted by the Commis-sion would be subject to approval by the Kansas Supreme Court. The Subcommittee found that the goal of a judicial evaluation program should be to improve the performance of the individ-ual judges and justices and thereby the judiciary as a whole, and to disseminate the data results to voters to assist them in making retention decisions.

KANSAS JUDICIAL COUNCIL SUBCOMMITTEE

RECOMMENDS JUDICIAL PERFORMANCE EVALUATIONS

Members of the Kansas Judicial Council Subcommittee to Study Judicial Performance Evaluations in Kansas

Hon. Stephen D. Hill, Chair Hon. Edward E. Bouker

Rep. Paul Davis Lew Ebert

Michael P. Farmer Dennis L. Gillen

Joyce Grover Hon. Jennifer Lynn Jones

Nancy Kindling Stacy Leeds

John L. Petterson Hon. Tom Saxton, Jr.

Hon. Fred Six Hon. Richard M. Smith

Randy M. Hearrell, Judicial Council Ex. Director

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ony counts of computer crime. He was found guilty of the lesser included offense of computer trespass. He appealed arguing that the seizure and search of his laptop was unlawful. In State v. Rupnick, ___Kan. ___ (December 16, 2005), the Supreme Court had little problem holding that the seizure of the laptop was lawful based on probable cause and exi-gent circumstances. It also held, as a matter of first im-pression in Kansas, that a search warrant must be obtained before the hard drive is searched. However, in this case, the search warrant was obtained from a magistrate who resided in Wabaunsee County (Second Judicial District) and the search warrant was executed in Shawnee County (Third Judicial District). K.S.A. §22-2503 states that “Search warrants issued by a district magistrate judge may be executed only within the judicial district in which said judge resides or within the judicial district in which said judge has been assigned.” The Court points out that the statute used to allow a warrant issued by a magistrate to be served anywhere in the state, but the legislature changed the wording in 1979. When the legislature revises an existing law, it held it is presumed that the legislature intended to change the law as it existed prior to the amend-ment.

EXPERT PSYCHIATRIC OR PSYCHOLOGICAL TESTIMONY MAY BE ALLOWED BEARING ON THE

DEFENDANT’S ABILITY TO RESPOND RELIABLY TO INTERROGATION, BUT IT MUST STOP SHORT OF EXPRESSING AN OPINION ON THE DEFENDANT’S

RELIABILITY IN THE SPECIFIC INSTANCE OF THE CONFESSION AT ISSUE IN THE CASE

In State v. Oliver, ___Kan. ___ (December 16, 2005), the Supreme Court was faced with whether or not the district court correctly excluded testimony from a defense expert that the defendant suffered from post-traumatic stress dis-order from witnessing the crimes at issue and from de-pendant personality disorder. The defendant confessed to being involved in the murders. The expert however was prepared to testify that given his diagnosis, there was a “high probability” that the defendant gave untrue informa-tion in his confession. The testimony related to defen-dant’s credibility at the time of the confession, not the vol-untariness of the confession. At the heart of this issue is the fact that a judge cannot allow a witness to opine on the credibility of another wit-nesses. To do so is per se error. Even an expert cannot testify that the defendant’s psychological conditions mean that the there is a “high probability” that he lied in his con-fession. However, the Court sited cases in the past in which it has allowed evidence going to “confabulation.”


The Verdict “Confabulation” is an automatic process through which “one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.” It is reflexive. When certain conditions are met, it requires no exercise of the defendant’s will to pro-duce a falsehood. This was no confabulations, however, since the expert was going to testify that due to the defendant’s con-dition he lied deliberately. After a lengthy review of cases from other jurisdictions, the Court found that a criminal defendant against whom a confes-sion will be admitted may be permitted to introduce expert psychological or psychiatric testimony bearing on his or her ability to respond reliably to interrogation. However, it must remain hypothetical or theoretical and it must stop short of expressing the expert’s judgment on the defendant’s reliability in the specific instance of the confession before the court.

THE RIGHT TO DNA TESTING In 1997 Jack Goldsmith was con-victed of numerous charges in-cluding rape. The State obtained a substantial amount of physical evidence, including blood and saliva samples and bodily fluid swabs from both Goldsmith and

the victim. Subsequent testing revealed no seminal fluid or blood which connected Goldsmith to the crime or the victim. Nevertheless, the jury convicted Goldsmith of all charges. Following sentencing, Goldsmith filed a motion for DNA testing, alleging that there was physical evidence seized that the KBI was unable to analyze, but that the FBI could analyze and that this evidence would be exculpatory. In an unpub-lished opinion, the Kansas Court of Appeals denied the re-quest on the basis that Goldsmith failed to properly identify the district court’s ruling regarding the DNA in his appeal. The Kansas Supreme Court denied review. In 2000, Goldsmith filed a habeas corpus petition (K.S.A. §60-1507) again making a request for DNA testing. The dis-trict court denied the motion stating that the State’s evidence of guilt was overwhelming. The Kansas Court of Appeals upheld the district court denial and found and that it would not entertain second or successive motions for relief from the same prisoner pursuant to Supreme Court Rule 183(d) (2001 Kan.Ct.R. Annot. 210). The Kansas Supreme Court denied review. In Goldsmith v. State, ___Kan.App.2d ___ (December 23, 2005), Goldsmith again seeks relief from the Kansas Court of Appeals. This time the district court treated his motion as another habeas petition (K.S.A. §60-1507), even though he stated he was preceding under K.S.A. 2004 Supp. §21-2512 (which allows any person convicted of rape to petition the court for DNA testing of any biological material that is related to the investigation, is in the possession of the State and was


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either not previously tested or is subject to retesting based on new techniques available). By classifying it as an action pur-suant to K.S.A. §60-1507, the defendant was required to file it within 1 year of the Supreme Court’s denial of review. Since this was filed in excess of one year after denial, it was out of time and summarily denied by the district court. This time, Goldsmith was successful. The Kansas Court of Appeals held that K.S.A. 2004 Supp. §21-2512 does not con-tain any statutory time limitation. The statute provides the right to DNA testing of biological material not previously subjected to testing that is in the possession of the State. The Court remanded the case to the district court for an eviden-tiary hearing and appointment of counsel. A PRIOR INCONSISTENT STATEMENT OF A ‘TURNCOAT

WITNESS’ MAY BE USED AS SUBSTANTIVE EVIDENCE TO PROVE THE ELEMENTS OF THE CRIME

Robert Coppage’s girlfriend sent a text message to her neighbor’s cell phone which contained a plea for help. It begged the neighbor to send the police and an ambulance to her residence. Upon arrival, the girlfriend answered the door. Her face was badly swollen, in fact her eyes were swollen shut. She was barely able to speak and she walked slowly. There was blood on her shirt, on the bedsheets, and on a pair of jeans. She told officers that Coppage had beaten her, de-scribed the beating, and said he was drunk at the time. She directed officers to the bedroom, where Coppage was asleep on the bed. Coppage was taken into custody. He gave a de-tailed statement to police in which he admitted beating his girlfriend. There was no question regarding the voluntariness of Coppage’s confession. Coppage was brought to trial on charges of aggravated bat-tery. The jury was sworn and evidence presented regarding the text message, the officers’ observations, pictures of the victim and the scene and the girlfriend’s statements. The girlfriend then took the stand and recanted what she had pre-viously told police. She claimed that she did not know the man who inflicted the injuries. She testified that she con-cocted her story to the police so that Coppage would be ar-rested at the scene, thereby preventing him from trying to locate and harm the real attacker. The prosecutor repeatedly impeached this testimony. At the close of the girlfriend’s testimony, the district judge recessed the jury and asked the State how it intended to prove its case in light of the girlfriend’s recantation. The prosecutor proffered that State’s remaining evidence, including the de-fendant’s confession to police. However, the district court found that the State could not possibly make a presentable case, and dismissed the charges against Coppage. The State then appealed.


The Verdict In State v. Coppage, ___Kan.App.2d ___ (December 23, 2005), the Kansas Court of Appeals held that the court was absolutely wrong to dismiss the charges. By dismissing the charge, the district court was expressing the belief that the prior inconsistent statements of a turncoat witness cannot be used as substantive evidence to prove the elements of the crime. This is in direct contradiction of Kansas law. The State had already presented sufficient evidence against Cop-page to sustain a conviction and it hadn’t even gotten to the point of the confession yet. This case should have proceeded to the jury for it to decide the effect of the victim’s recanta-tion. Unfortunately, because the jury had been sworn and evidence presented, jeopardy attached against Coppage. The trial court’s dismissal of the charge amounted to a judgment of acquittal. Kansas case law is clear that the State may not appeal from a judgment of acquittal. Therefore, in spite of the trial court error, double jeopardy prevents further prose-cution of Coppage for aggravated battery.

SMELL OF FABRIC SOFTENER DRYER SHEETS IN CONJUNCTION WITH OTHER SUSPICIOUS FACTORS IS

HIGHLY PROBATIVE OF DRUG TRAFFICKING George Moore was properly stopped by Kansas Highway Patrol for following a vehicle too close on I-70. After stop-ping the vehicle, the Trooper noted that the vehicle was not registered to the driver, the driver displayed a higher degree of nervousness than typically displayed in a routine traffic stop and he noted a faint odor of fabric softener, which the Trooper knew to be commonly used to conceal the odor of drugs. The driver stated that he had borrowed the car from a friend and that he was driving from Las Vegas to Maryland. Once the Trooper handed the defendant back his license and regis-tration, the defendant put his hand on the gearshift. At this point, the Trooper asked whether the driver had any guns or drugs in the car. The defendant stated he did not. The Trooper requested and received permis-sion to search the car. The Trooper even-tually discovered 55 pounds of marijuana concealed in dryer sheets throughout the vehicle. In State v. Moore, ___Kan.App.2d ___ (December 23, 2005), Moore challenges the search. The Kansas Court of Appeals held that the encounter with Moore after returning his license and registration was not consensual. Even though the district court seemed to place great emphasis on the fact that Moore had his hand on the gear shift ready to leave when the officer asked him if he could search, it was indisputable that the Trooper’s emer-gency lights were still activated. The Trooper was still lean-ing against defendant’s car. The back-up officer was also


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standing near the defendant’s vehicle. “When two officers are standing next to a stopped vehicle, presumably with the emergency lights in the patrol vehicles still activated, no rea-sonable person would feel free to drive away.” However, the further detention was justified by a reasonable and articu-lable suspicion of criminal activity. The following factors were enough to give rise to a reason-able suspicion of criminal activity: the vehicle was not regis-tered to the driver, the driver was driving from Las Vegas to Maryland, the driver was overly nervousness, the driver car-ried little clothing, and the smell of dryer sheets. While the smell of dryer sheets, which is commonly used to mask the odor of illegal drugs, would not support a reasonable articu-lable suspicion of drug activity, this factor relates specifically to a know technique related to drug trafficking. The Court pointed out that the strong odor of a masking agent, such as laundry detergent, is highly probative of illegal drug activity according to the Eighth Circuit . “While it may be a close case, we believe that under these circumstances a reasonably prudent law enforcement officer would have possessed a suspicion the vehicle was being used for drug trafficking. It was reasonable, therefore, for Trooper Jimerson to ask further questions of the defendant.” Because the facts support a finding of a probable cause search, it is irrelevant that Trooper Jimerson erroneously re-lied upon the defendant’s consent. Note: The case also contains a short discussion of the two second rule when it comes to following distances and appears to accept such a standard when determining whether or not a vehicle is following another one too closely under K.S.A. §8-1523(a) (STO § 47).

CALCULATING SPEEDY TRIAL TIME WHILE DEFENDANT IN CUSTODY: CLOCK STOPS RUNNING AGAINST STATE ON THE DATE THE DEFENDANT’S

MOTION TO CONTINUE IS GRANTED, REGARDLESS OF WHEN THE ORIGINAL TRIAL DATE IS SET

Defendant was charged with involuntary manslaughter while DUI. He was in custody awaiting trial. According to K.S.A. §22-2402(1) a defendant held in custody solely by reason of a criminal charge must be brought to trial “within ninety (90) days after such person’s arraignment on the charge…unless the delay shall happen as a result of the application or fault of the defendant.” Defendant was arraigned on June 4, 2003. He pled not guilty and a trial date was set for August 20, 2003 (77 days from arraignment). On July 30, 2003 the Defendant filed a motion for a continuance in order to have time to retain an expert. The request was granted on August 1and the new trial was set


The Verdict for October 27, 2003. On October 27, 2003, the county at-torney fell ill and the trial was continued to November 20, 2003. On November 13, 2003 the Defendant filed a motion to discharge him due to violation of his speedy trial rights. If you add the 77 days from arraignment to the original trial date and the days from the new trial date (October 27, 2003) to the final trial date (November 20, 2003) (24 days), 101 days have elapsed. It would appear that the Defendant wins. But not so fast, ruled the Kansas Court of Appeals in State v. Brown, ___Kan.App.2d ___(December 23, 2005). In a split decision (2-1), with a lengthy dissent filed by Justice Greene, the Court held that the delay from July 30 when he filed his motion to continue all the way to October 27 should be charged to the Defendant, therefore only 80 days have elapsed. The Defendant’s statutory speedy trial right has not been denied. In other words, the time from July 30 to Au-gust 20, although originally charged to the State, changes to be charged against the Defendant by the mere filing of his motion to continue. The Court relies on the different provi-sions in K.S.A. §22-2402(1) and K.S.A. §22-2402(3)(c) in concluding that the method used to calculate speedy trial time is different depending on the circumstances. Subsection (1) (the 90 day in-custody provision) seems to require that the time be charged to the State unless the delay is based on “the application of the defendant” in this case the applica-tion for a continuance, whereas subsection (3)(c) refers to measuring time “from the original trial date.” OFFICER WHO SAW DEFENDANT, WHOM HE KNEW TO BE SUSPENDED, DRIVING, WAS JUSTIFIED IN STOPPING HIM 14 MINUTES LATER WHEN HE WAS A PASSENGER IN A CAR AND REQUESTING HE TAKE A BREATH TEST Officer Lee Patterson was working the night shift. He knew Alan Butcher had a suspended driver’s license. He saw Butcher driving, but by the time he turned around he had lost sight of him. Fourteen minutes later he located Butcher’s vehicle and stopped it. Butcher was no longer driving the vehicle, but was instead a passenger. The driver, Jesse French, told the officer that he had been asleep at home when Butcher showed up and asked him to take him to Winfield because he had been drinking. Butcher said that he and French had been driving around all night and that two girls from the VFW had dropped him off at French’s house. Butcher was abusive, combative, profane and threatening during the stop. He appeared intoxicated, had the odor of alcoholic beverages, slurred speech, bloodshot eyes and dif-ficulty communicating. He refused to submit to or complete field sobriety tests or a chemical test. He denied ever operat-ing the vehicle. Based on refusing the breath test, his license was suspended for 3 years (he was a multiple offender). He appealed his suspension. The administrative hearing officer upheld the suspension, so he appealed to the district court. He argued that there was


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The Verdict

OPEN SCHOOL LUNCH POLICIES MEAN HIGHER CRASH RATES

FOR TEENS

Reprinted from Status Report, Insurance Institute for Highway Safety, Vo. 40, No. 6, July 16, 2005 Crash involvement rates for 16-18 years olds are higher in counties where teens are permitted to drive away from school during lunch. This is the major finding of a recent study by researchers at the University of North Carolina School of Medicine. Researchers compared lunchtime crash involvement rates as schools in Orange and Ala-mance, North Carolina, where open lunch policies are in effect, with rates in Pitt County, where students aren’t al-lowed to drive away from school for lunch. Rates were measured as the number of 16-18 year-old drivers or pas-sengers involved in crashes in which drivers were 16 or 17, per 1,000 count residents ages 16 to 18 (crashes in-volving 18-year-old-drivers were excluded to ensure that all drivers in the study were high school age). The three counties were selected based on similarities in size, demo-graphics, and geography. Crash rates during lunch (noon to 2:00 p.m.) were about three times higher in Orange and Alamance counties than in Pitt. There were no differences in the counties’ crash rates at other times of the day. Over a 24-hour period, the number of occupants in the vehicles that crashed in the three counties didn’t vary sig-nificantly. But occupancy was higher in the lunchtime crashes that occurred in Orange (2.1 people per vehicle) and Alamance (2.3) counties than in crashes at the same time of day in Pitt (1.4).

“This is important because of the wealth of research showing that young drivers’ crash rates go up when more teens are riding in vehicles,” says Susan Ferguson, Institute senior vice-president for research. “Young drivers who go out for lunch often take along their friends, which increases the risks.” The study was conducted in 2002, before North Carolina be-gan restricting the number of passengers in vehicles driven by beginners. Now young beginners aren’t allowed to drive more than one passenger who’s younger than 21 and isn’t a member of the driver’s family. “As we consider the safety implications of open lunch poli-cies, it’s important to note that driving to and from school can be even riskier than driving at lunchtime.” Ferguson points out. An Institute analysis of weekday crashes of 16 and 17 year-olds during the 9-month school year indicates wide variations in crash counts by time of day. During 2001-03 the largest number of crashes (about 166,000 nationwide) occurred from 3 to 4:00 p.m., when teenagers were leaving school. Another 123,000 crashes occurred during the 7 a.m. hour, as teens were driving to school. A smaller peak (about 69,000 crashes) occurred at lunchtime. No such patterns were appar-ent during the summer months when teenagers were out of school. “High school off-campus lunch policies and adolescent motor vehicle crash risks” by L.M. Stone and C.W. Runyan is in Journal of Adolescent Health 36:5-8 (2005).

NUTS and BOLTS

Question: Can someone under the age of 18 be convicted in municipal court of no proof of insurance? Answer: No. Municipal courts have jurisdiction over juvenile traffic offend-ers. A juvenile traffic offender is a person 14 or over who commits a traffic offense. K.S.A. 2004 Supp. §38-1602(b)(1) and K.S.A. 8-2117 (2001). “Traffic offense” is defined as a violation of articles 1 and 2 of chapter 8 of the Kansas Statutes Annotated or a city ordinance equivalent. K.S.A. §8-2117 (2001). The state statutory equivalent of the no proof of insur-ance ordinance (STO 200) is contained at K.S.A. §40-3104. It is a misdemeanor level offense not contained in chapter 8. Therefore, municipal courts do not have jurisdiction over any-one under the age of 18 for a no proof of insurance violation. See also, Kansas Municipal Court Judge Manual, p. 3-5. The juvenile would have to be charged through juvenile court.

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insufficient proof that he operated the vehicle, no driving violation had been committed by French (or Butcher for that matter with the exception of being suspended), justifying the stop of the car by Officer Patterson, and the information Pat-terson relied on was “stale” being at least 14 minutes old. The district court agreed and reversed Butcher’s suspension. It held that the defendant was stopped for operating on a sus-pended license 14 minutes earlier, not for suspicion of DUI. He had no reasonable basis for suspecting the defendant was intoxicated at the time he stopped French. In Butcher v. Kansas Dept. of Revenue, ___Kan.App.2d ___(December 30, 2005), the Kansas Court of Appeals sided with the Department of Revenue and reinstated Butcher’s 3 year suspension. Butcher, it held, has the sole burden of proving by a preponderance of the evidence that the facts set out in the officer’s certification were false. Officer Patterson saw Butcher driving. He knew Butcher was suspended. Evi-dence was presented at trial that Butcher was in fact sus-pended on the date Officer Patterson saw him. He had prob-able cause to stop him and question him about the suspended violation. Upon making the stop, he was able to develop a suspicion concerning his intoxication. Considering that only 14 minutes had elapsed between witnessing the driving and observing Butcher intoxicated, the officer had reasonable grounds to believe that Butcher had operated a vehicle while under the influence of alcohol. The initial stop does not have to be for suspicion of DUI to justify a subsequent suspension.

DEFENDANT MAY WITHDRAW A GUILTY OR NO CONTEST PLEA BEFORE SENTENCING FOR “GOOD

CAUSE SHOWN” In State v. Locke, ___Kan.App.2d ___(January 6, 2006), the Kansas Court of Appeals held that anytime prior to sentenc-ing a defendant may withdraw his or her plea based on “good cause shown.” After sentencing, the standard changes to allow withdrawal of a plea only to “correct manifest injus-tice.” See, K.S.A. 2004 Supp. §22-3210(d). It should be noted that there is no similar provision in the Kansas Code for Municipal Courts, although K.S.A. §12-4408 (2001) states that the Kansas code of criminal procedure shall gov-ern, insofar as applicable, the filing and disposition of mo-tions.

SPEEDY TRIAL CLOCK ONLY TOLLED FOR STATE ON APPEAL UNTIL MANDATE RECEIVED BACK FROM THE

APPELLATE COURT When the prosecution files an interlocutory ap-peal, the speedy trial clock is tolled until the mandate is returned from the appellate court to


The Verdict the trial court. Once the mandate is received, the clock imme-diately starts ticking against the State until the case is brought to trial. State v. Haney, ___Kan.App.2d ___(January 6, 2006). CONSPIRACY CHARGE MUST ALLEGE AN OVERT ACT; SIMPLE BATTERY NOT ALWAYS A LESSER INCLUDED

OFFENSE OF AGGRAVATED BATTERY Jesus Marino was convicted of one count of aggravated bat-tery and one count of conspiracy to commit aggravated bat-tery. The conspiracy complaint simply alleged that the defen-dant committed “an overt act in furtherance of the conspiracy” but did not state what the overt act was. In State v. Marino, ___Kan.App.2d___(January 13, 2006), the Kansas Court of Appeals reversed the conviction and found the complaint to be fatally defective for not alleging the overt act. It also found that the trial court committed error, although in this case harmless error, when it admitted the journal entry setting out that the alleged co-conspirator pled guilty to the conspiracy count. This was admitted in an effort to prove that there was in fact a conspiracy. The co-conspirator had been deported to Mexico and was not available at trial. Admission of the journal entry violated Marino’s Sixth Amendment right to confront witnesses, however given the overwhelming evi-dence against Marino, it was harmless. Finally, the Court of Appeals found that in this case it was not error to fail to give a lesser included instruction for simple battery because the evidence did not support a verdict for mis-demeanor battery. Even if the jury had found that the victim suffered only “bodily harm” and not “great bodily harm”, the evidence was clear that the defendant used a pipe, which is a deadly weapon, to attack the victim. There was no evidence that he did not use a pipe. Therefore, the Court reasoned the jury could not find him guilty of simple battery.

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The Verdict

A recent opinion by the Judicial Advisory Council ad-dressed the issue of whether judges may ethically contrib-ute to the Kansans for Impartial Courts Committee of the Kansas Appleseed Center for Law and Justice. But what is the Kansas Appleseed Center for Law and Justice? How did they form? What do they do? Kansas Appleseed is an affiliate of the Appleseed Founda-tion in Washington, D.C. The Appleseed Foundation was founded in 1994, the brain-child of the Harvard Law School class of 1958 following discussions at their 35th reunion. Its goal was to help or-ganize, establish and guide state centers for law and public interest around the country. Their concept was to “plant a seed from which a public service activity involving law-yers, young and old, can grow and develop across the coun-try.” It was this theme of public service that had united their generation and they wanted to give something back. Ralph Nader was just one of the prominent founders of the Foundation. The goal was not individual litigation. Policy analysis, research, legislation and rule making were the desired means to achieve system-wide reform. The model of operation was that each Appleseed Center would be self-reliant and independent of the Foundation, with just a few years of “incubation” after being given some “seed” capital from the Foundation. It also provides training, resources, and technical assistance. Each Center is to address some pressing need in its particular commu-nity. It brings issues to the forefront of the public agenda and coordinates efforts. There are 17 such Centers nation-wide. According to its website, http://www.appleseeds.net, Appleseed Centers work in such areas as public education, access to justice, economic opportunity, child support, bul-lying prevention and immigrant rights. They “sow seeds of justice across the land.” They are known for putting “big-firm lawyers to work tackling complicated policy ques-tions.” The Foundation itself has no political agenda. The Kansas Appleseed Center for Law and Justice Board of Directors is chaired by long-time Kansas lawyer Jack Focht, of Foulston & Siefkin. Board members are J. Eugene Balloun, Shook, Hardy & Bacon; Barton P. Cohen, Blackwell, Sanders, Peper & Martin; Prof. Linda Elrod, Washburn Law School; Dan Glickman, John F. Kennedy School of Government; Teresa James, Wallace, Saunders,


What is Kansas Appleseed Center

for Law and Justice?

More Judges Get “Thank You”

Send us your letters and we will share them with your peers. All submissions will remain anonymous.

6-22-05 To the “Judge” My name is “Jane Doe.” I called you on June 21, 2005 and left you a message on voice mail letting you know about my car. However, I missed the court and was soooooo——-scared!!! that I was going to jail, when you go before the judge you always think that you’ll get the chair. I really want to say that you are regular people ‘n’ THANK YOU SO MUCH!!!!! ☺ “Jane Doe”

AND THE GENERAL SAYS:

The following contains a summary of recent opinions from the office of Kansas Attorney General Phill Kline that may be of interest to municipal judges. The full text of all AG opinions can be accessed through www.accesskansas.org.

AG OPINION NO. 2006-2 JANUARY 4, 2006

SUNDAY LIQUOR SALES A city must adopt an ordinary ordinance in accordance with the provisions of Section 9 of L. 2005, Ch. 201 in order to continue in effect the provisions of a charter ordinance adopted prior to November 15, 2005 that expanded the days of sale at retail of alcoholic liquor to include Sundays and/or Memorial Day, Independence Day, and Labor Day. A city cannot enact an ordinary ordinance authorizing the retail sale of packaged alcoholic liquor on Memorial Day, Independence Day, and Labor Day without also allowing such sales on Sun-day, except Easter. A city may, however, further restrict the hours of operation on Sunday for the retail sale of packaged alcoholic liquor and packaged cereal malt beverage.

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The Verdict ers age. By the time drivers reach the 20-to24-year-old group, there are eight crashes per million miles for men, and nine crashes for women, according to the Insurance Institute for Highway Safety, based on 200 data.

Those crashes take a deadly toll. The insurance institute says that 32 16-year-olds died per 100,000 drivers in 2003, four times the fatality rate of the 30-to-59 age group.

Researchers say there is clearly a problem with teenage driv-ers becoming easily distracted on the road. Their work has bolstered efforts to ease teenagers into the driving world, giving them more time to learn, restricting nighttime driving and barring other teenage passengers, who sometimes incite dangerous behavior. Now 45 states have some version of what’s called graduated drivers licenses. But many researchers say convincing evidence is lacking on any link between cell phone use and accidents even with academic studies like one published last winter that found young motorists talking on cell phones react as slowly as senior citizens, and are more impaired than drunk drivers. “It’s just not clear,” said Susan Ferguson, vice president of research at the Insurance Institute. The National Transporta-tion Safety Board and the Governors Highway Safety Asso-ciation both endorse bans for cell phone for novice drivers. But they back off on bans for adult drivers. State legislators and governors, too, have proved largely re-luctant to limit or ban cell phones for all drivers. New York banned handheld devices in 2001, and since then only New Jersey in 2004, and the Connecticut legislature this year ap-proved a ban. Connecticut’s law is waiting on the gover-nor’s signature. “This is part of an evolution, part of a revolution as we learn more and more about human factors in driving,” said Ellen Engleman Conners, the chairman designate at the National Transportation Safety Board. More research is being pur-sued to shape public policy, but until then, it makes sense to protect teenagers because their vulnerability to distractions and accidents is indisputable, she said. It’s easy to pass a law, but harder to change behavior, said Sheriff Dave Owens in McLean County, Ill. “Just the fact that it becomes law…is that enough to get people to stop? We have speeding laws in this country and people routinely speed,” he said. In Maryland, advocates had pushed for years to get tougher restrictions on teenagers that include many of the elements of graduated driver’s licenses. They had always failed until this year, when a series of fatal crashes sharpened public atten-tion to the problem. “There were 18 teens killed in about three months,” said Bronrott, a longtime advocate of safe driving rules. “It was a huge wakeup call.”

STATES BAR TEEN DRIVERS USING CELL PHONES

By Robert Tanner, The Associated Press June 25, 2005. There are a few things that the average teen-ager absolutely must have in 21st century America. A li-cense to drive is one, a cell phone is another. But police officers, parents, and increasingly, lawmakers are coming to the conclusion that those essentials are a dangerous mix when combined with inexperience on the road. A growing number of states are creating legal barriers to keep young drivers from using cell phones, even as few ban adults from talking at least handsfree while driving. “It’s not a silver bullet solution, but it’s one piece of a puz-zle we need to put in place if we’re serious about eliminat-ing highway deaths, highway crashes, as the No. 1 cause of death of young Americans, “ said Maryland Delegate Wil-liam Bronrott. The year began with just two states limiting cell phone use for teen drivers. But as legislative sessions moved ahead, lawmakers in six states passed bills to bar all cell phones, handheld or handsfree, for teenage drivers with learner per-mits or provisional licenses. Now laws in Colorado, Con-necticut, Delaware, Maryland and Tennessee say young drivers must keep the phone off. Illinois’s measure is wait-ing for Gov. Rod Blagojevick to sign it into law, but his staff says he intends to. Main already bars cell phones for drivers with provisional licenses up to age 21, and New Jersey bans them for those drivers at any age. At least a dozen more states considers similar measures in recent months and balked, though advocates say they’ll be back. Lawmakers don’t necessarily expect teenagers to like it and they don’t. “I don’t know anybody who says it’s a good idea, or it’s fair to single out 16- or 17-year-olds,” said Adam Bonefest, a 17-year-old from Springfield, Ill. Nearly all his friends have their own cell phone, and everybody needs to drive for work, school and social life, he said. “I drive and talk on my cell phone all the time,” he said. “I’ve never had any problems, never run into anything or got a ticket.” Whether or not they’re using cell phones, teenagers are much more likely than older drivers to get into accidents. At age 16, boys get into 27 crashes per million miles driven and girls 28 crashes. Those numbers drop quickly as driv-

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The Verdict

Austin, Brown & Enochs; John J. Jurcyk, McAnany, Van Cleave & Phillips; Hon. James Logan, Foulston & Siefkin; Don Rezac, Rezac Land & Livestock; Larry Rute, Associ-ates in Dispute Resolution; Roger D. Stanton, Law Offices of Roger D. Stanton; Gaye Tibbets, Hite, Fanning & Hon-eyman; and David Wing, Spencer, Fane, Britt & Brown. These recognized “leaders” in the Kansas legal community have chosen two diverse issues to focus their efforts, foster care teens and judicial selection reform.

In February 2002 the Center pub-lished Foster Care Teens: Kansas Forgotten Children. The report made recommendations regarding state funding and legislation needed to deal with this unaddressed population so they do not end up being lifelong residents of the state welfare or penal

system. Its efforts resulted in, among other things, legisla-tion granting a limited number of children college tuition waivers. More recently, it released Expen$ive Justice, An Analysis of 2000 and 2002 Partisan Judicial Elections in Sedgwick County pointing out that the best predictor of a candidates ability to become an elected Sedgwick County Judge is the amount of money a candidate can raise or can afford to do-nate to the candidate’s own campaign. It clearly recom-mends that Sedgwick County switch to a nonpartisan selec-tion system, but comes to that conclusion only after exten-sive surveying of judges, lawyers and the general public. The Center is also partnering with the Justice at Stake cam-paign, a nonpartisan national campaign to help protect our courts through public education, grass roots organizing and reform. http://justiceatstake.org


SAFETY TIPS FOR JUDGES The security measures present inside many courthouses create a presumed sense of safety. “There is an invalid assumption that someone else is managing the security, so people suspend their judgment.” according to Robert Williams, a crime-prevention and self-defense expert. “And, when they step out of the courthouse doors, there is no consideration that the environment is more dangerous.” As a result, lawyers and judges should consciously stop and shift gears when they exit the courthouse doors. “A lot of people leave work and automatically move into personal mode, busy with their cell phones and blank to their surroundings,” Williams said. “There needs to be an intermediary step where you stop and look around. You have to realize that there are people out there who don’t like you. In the courtroom, it probably doesn’t matter what they think of you. But on the street, it does. Protecting yourself is not paranoia. You cannot afford to take the chance of something happening to you or your family.” Here are a few tips: • Enroll in a basic self-defense or safety awareness class. • Cut back on landscaping so your house is visible and

intruders have nowhere to hide. • When you arrive home, look for signs of forced entry

around the windows and doors. If you notice anything, leave and call the police.

• If you use an automatic car door opener, do not engage it until you are ready to get into your car. Otherwise, you announce which car is yours and where you are headed.

• If you have been threatened, tell everyone you know, including the police and your family.

• Carry a trial size can of hair spray and/or a horn that makes a loud noise with you to use if attacked. Carry pepper spray if you have been properly trained in its use.

Excerpts from Protecting Yourself: Taking Charge of Your Personal Safety and Security by Morgan Morrison and published in the Texas Bar Journal, June 2005.

Kansas Appleseed Center

17

The Verdict

EVERYEVERY 8 8 SECONDSSECONDS

Someone in the world dies from a tobacco-related illness

6969

Cancer-causing chemical compounds in cigarette smoke

ININ ASAS LITTLELITTLE ASAS 2 2 WEEKSWEEKS

Nicotine changes the brain’s chemistry and

addiction can begin

$15.2 $15.2 BILLIONBILLION

Spent on advertising and promotions in 2003 by the largest cigarette manufacturers

$1.8 $1.8 BILLIONBILLION

Amount of money tobacco companies make each year from

underage sales of tobacco

$72.9 $72.9 MILLIONMILLION

Spent by those same manufacturers on advertisements to reduce youth smoking in 2003

(This is the equivalent of less than ½ of 1% of their total advertising budget and 4% of their income from underage

sales of tobacco)

80 80 PERCENTPERCENT

Percentage of smokers who started smoking before they reached the age of 18

72 72 MILLIONMILLION

Number of bottles of a popular mineral water voluntarily re-

called in 1990 because small traces of benzene were found. The smoke from one pack of unfiltered cigarettes has as much ben-

zene as 169 bottles of the contaminated water.

OONENE THIRDTHIRD

Of all smokers are estimated to eventually die from a tobacco related disease.

$3,600,000$1,300,000

$474,702

$159,467

$43,017$210

50 years

40 years

30 years

20 years

10 years

one month

How little things add up: (Assumes one purchase per day; 10% annual rate of return on money). Pack of cigarettes: $7*

*New York City Cost Source: Start Late, Finish Late, by David Bach: USA TODAY research

INFORMATION TO PASS ON TO TOBACCO

OFFENDERS

““ATAT SOMESOME POINTPOINT THEYTHEY BEGINBEGIN TOTO CRAWLCRAWL””

Response of tobacco executive in 1996 to the question “How do infants avoid second-hand smoke?”

2,0002,000

Number of teens that start smoking every day

RREPLACEMENTEPLACEMENT SMOKERSSMOKERS

Term tobacco companies use to refer to new customers

CYANIDECYANIDE

In 1989 millions of cases of imported fruit were banned after

a small amount of cyanide was found in just two grapes. There’s 33 times more cyanide in a single cigarette than was

found in those two grapes

70%70%

Percentage of smokers that say they want to quit. 35% at-tempt to quit, and only about 5% succeed every year

ONEONE

Cigarettes are one of the only items in the grocery store that are not required to list ingredients on the package. If they did, you would find the following: tobacco injected with:

ammonia, arsenic, acetic acid, tar, carbon monoxide, acetone, cyanide, ascorbic acid, benzoic acid, benzyl alcohol, citronella oil, ethyl alcohol, nicotine, formaldehyde, lead, and butane to

name just a few. Sources: www.ftc.gov; www.thetruth.com; ww.cancer.org ; www.kickbuttsday.org

18

The Verdict

By Hon. Karen Arnold-Burger Why can’t we just drink like the Europeans? They don’t seem to have a problem with alcoholism. They drink wine with every meal starting at a very young age, yet they don’t have the problem with underage drinking that we do here in the United States. They seem to do fine with a much lower drinking age, 18 in most countries (16 in a few). What is their secret? We should allow our kids to drink in small controlled quantities from the time they are very young, like the Europeans, and then they will learn how to drink responsibly. The secret is that the above paragraph is an absolute and total myth. For some reason we have romanticized the European drinking model into something that it is not. Ac-cording to the recent findings of the National Research Council, Institute of Medicine, research clearly shows that most European countries not only have higher levels of consumption (an expected consequence of the lower drink-ing age), but also higher levels of problematic drinking (e.g. intoxication) among youth. Reducing Underage Drinking; A Collective Responsibility, National Research Council, National Institute of Medicine of the National Academies, 2004, National Academy of Sciences, p. 163 The image of young and old gathered around a wonderful meal in the French countryside consuming wine to their heart’s content seems to be seared into our psyche. But, let’s take a closer look at the facts. According to Dr. Michel Craplet, a psychiatrist who repre-sents France at Eurocare, a coalition of European alcohol policy advocacy groups, “Alcohol is the number one health problem in France.” French youth, who can legally drink at 16, prefer beer and distilled spirits to wine (as do Ameri-can adolescents) and have increased their consumption fivefold since 1996, in part because 12 to 14 year olds are drinking and binge drinking. (Sound familiar? The aver-age age of regular use of alcohol, defined as at least one or more times per month, in Johnson County is 14). Still not convinced? If the early socialization to drinking that is assumed to be typical of Europe is such that it fosters responsible drinking, then we would expect to see much lower rates of binge drinking in Europe than in the United States. Binge drinking is associated with increased risk for a variety of problems including DUI, traffic fatalities, fight-ing, truancy, criminal behavior, suicide, etc. Contrary to this expectation, U.S. adolescents show a lower prevalence rate for drinking five or more drinks in a row than adoles-

cents in many European countries:

*2003 Survey Results (European School Survey Project-ESPAD; U.S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services, National Survey on Drug Use and Health) A similar survey in 2000 looked at the percentage of 15 year old boys and girls (equivalent to 10th grade in the U.S.) that reported having been drunk at least twice (certainly not re-sponsible drinking).

*Source: Currie et al. (2000)-reproduced in “Drinking among Young Europeans” by Wolfgang Settertobulte, World Health Organization, 2001


The Secret to European Drinking

19

In 2001 the European Ministries of Health found the prob-lem to be so dire that they agreed on a “Declaration on Young People and Alcohol,” stating that “the health and well-being of many young people today are being seriously threatened by the use of alcohol,” and setting goals, includ-ing reducing drinking and high-risk drinking substantially, delaying the onset of drinking among young people, and reducing pressures on young people to drink from alcohol advertising and other promotions (World Health Organiza-tion, 2001). Today, many European countries are actually looking to the United States for research and experience with regards to raising the drinking age in their respective countries. In short, there is no evidence that the lower drinking ages in Europe are protective or that the stricter laws and policies regarding drinking by young people in the United States are associated with higher rates of intoxication. Equally, there is no evidence that the more liberal policies and drinking socialization practices in Europe are associated with lower levels of intoxication. “Comparison of Drinking Rates and Problems: European Countries and the United States”, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, published February 2001. The secret is out.


The Verdict

European Drinking

Age Alcohol Purchase

European Countries

U.S. States

European Countries

U.S. States

≤ 15 1 0 0 6 16 6 0 0 42

17 0 0 11 1

18 16 0 23 1

19 0 0 0 0

20 1 0 0 0

21 1 50 0 0

Driver’s License

Sources: World Health Organization (1999); International Center for Alcohol Policy (2002); Automobile Association.

THE FRENCH PARADOX The "French paradox" (having a high saturated fat diet and lower than expected death rate from heart disease as a result of the daily consumption of red wine) was highly publicized in 1991 by Morley Safer in a segment on 60 minutes. However, there is no scientific consensus today over the protective effect of alcohol, according to France's secretary of health. "The link between the quantity of alcohol consumed and increase risk of diseases, particularly cancer, is, on the other hand scientifically validated." The French drink one-and-a-half times more per capita than Americans and their death rate from liver cirrhosis is more than one-and-a-half times greater than the United States. So the real paradox is "drink like the French, die like the French."

AGE OF ALCOHOL PURCHASE v.

AGE OF DRIVER’S LICENSE

What about teen traffic collisions? Well, European youth do appear to be at less risk of traffic crashes because they drive less frequently. In addition, compared to the United States, Europeans have higher legal driving ages (18 in most Euro-pean countries) and greater access to public transportation. Although we know that 16 year olds have a five times greater chance of being involved in a fatal crash than drivers 20 and older, we allow children to drive unaccompanied as young as 14 in Kansas. Coincidently, this is the same age our Kansas youth report “regular drinking” (at least two times per month). See, Kansas Communities that Care data at: http://www.ctcdata.org. In Europe, kids are also drinking at 14 and 15, but are generally not allowed to drive until they are 18.

20

The Verdict

Pursuant to Kansas Supreme Court Rule 7.04(f), unpublished opinions are not precidential and are not favored for citation. They may be cited for persuasive authority on a material issue not ad-dressed by a published Kansas appellate court opinion. However, whenever cited, a copy of the opinion must be attached to the docu-ment, pleading or brief that cites them. Westlaw has now started indexing Kansas unpublished opinions. Therefore, in conducting legal research you may be routed to an unpublished decision. With that in mind, The Verdict, will start summarizing unpublished opinions that deal specifically with cases out of municipal courts.

CITY DOES NOT HAVE TO WAIT 60 DAYS AFTER WRITTEN NOTICE OF A ZONING VIOLATION TO FILE A

COMPLAINT IN MUNICIPAL COURT Unpublished Decision

The City of El Dorado has adopted an ordinance that prohibits auto wrecking, junk and salvage yards in C-1 business dis-tricts. It defines these activities as “Establishments primarily engaged in the distribution at wholesale or retail of used mo-tor vehicle parts. This industry includes establishments pri-marily engaged in dismantling motor vehicles for the purpose of selling parts…” A salvage yard was defined as “A place where junk, waste, discarded or salvaged materials are bought, sold, exchanged, stored, baled, packed, disassembled, handled or prepared for recycling, which shall include auto wrecking yards, but shall not include retail secondhand furni-ture stores or the purchase and storage of used or salvaged materials as part of a manufacturing operation.” The City has also adopted provisions that mirror K.S.A. §12-759 which allows persons aggrieved by a decision of the city’s zoning administrator to appeal to the Board of Zoning Appeals. The appeal must be filed within 60 days of the ruling made by the zoning administrator. The City must give written notice of a zoning violation to the property owner. On June 12, 2002, the city’s zoning administrator sent Morrell Hicks a letter telling him that it was concerned about his oper-ating a salvage yard in a C-1 business district. The letter ad-vised him that he was not allowed to “part out” vehicles and store them on the property. It gave him until July 1 to remove the nonconforming use or the City would take “further ac-tion.” Although there was an intervening attempt to resolve the issue and get Mr. Hicks to voluntarily clean up the prop-erty, on August 2 the City issued Hicks a citation for operat-ing a salvage yard in a C-1 Business District. In October he was convicted in municipal court and appealed to the District Court. One year later his case came on for trial before a jury in the District Court. He was convicted and sentenced to 6 months in jail and a $500 fine. The Court suspended the jail sentence on the condition that Hicks clean up the property within 30 days. If he did, the Court also indicated it would

Unpublished Opinions remit half the fine money back to him. He appealed to the Kansas Court of Appeals. First, Hicks argued that the June 12th letter was not a “final determination” from which he could appeal. It only stated that the City was “concerned” about his property, it made no determination. It was not the required “written notice of a violation” that is a prerequisite to charging the defen-dant. The Kansas Court of Appeals agreed with the trial court and found that the letter was a “friendly way of giv-ing Hicks written notice of the violation”. He also argued that the City was required to wait 60 days after any letter for his appeal time to run before it could file any charges. Although the City filed the citation less than 60 days after the letter, the Court held that there is nothing that requires the City to wait the 60 day time frame before it files a cita-tion. Hicks still could have filed his appeal to the BZA which would have stayed the proceedings in municipal court. The Court found that Hicks filed no appeal, so the issue was moot. Hicks also argued that the zoning ordinance was unconsti-tutionally vague. He argued that the definition of “salvage yard” is vague because one could not describe exactly what constitutes a salvage yard. The trial court likened salvage yards to pornography---“you know, sometimes it’s a little hard to define, but, boy, you sure know it when you see it.” The Kansas Court of Appeals agreed. “A person would know a salvage yard when he or she sees it…common knowledge would lead to the conclusion that a broken-down vehicle on a person’s property does not amount to a salvage yard. However, property with several broken-down vehicles might indeed constitute a salvage yard. Likewise, property with a vehicle part on it might not constitute a salvage yard, but property with several vehicle parts might well amount to a salvage yard…Even though the court was not able to elaborate what amounted to a salvage yard, the words used in the definition of the ordinance are commonly used words.” City of El Dorado v. Hicks, 2005 WL 3030276 (Kan.App., November 10, 2005). BELCHING DURING BREATH TEST CAN CONSTITUTE

A “TEST REFUSAL” FOR DRIVER’S LICENSE SUSPENSION PURPOSES IF THE DRIVER IS UNABLE

TO PROVE THAT HE OR SHE HAS A MEDICAL CONDITION UNRELATED TO ALCOHOL OR DRUGS

THAT CAUSED THE BELCHING Unpublished Decision

Herman Almon was arrested for DUI and taken to the po-lice station for a breath test. Almon belched during three consecutive “observation periods.” The officer stopped testing and entered a test refusal. He did not ask Almon to submit to a blood test. Almon appealed the administrative hearing officer’s determination suspending his driver’s license for refusing the test. His only argument was that

21

The Verdict

he did not refuse the test because he had not done anything intentionally to thwart the test. He stated that his belching was involuntary and caused by eating a ham and cheese sandwich with onions before leaving the bar and grill which he operated. He also admitted having an alcoholic drink prior to leaving. The officer testified that Almon also belched on the way to the station and he could not tell if any of the belches were voluntary or involuntary. The Kansas Court of Appeals held that K.S.A. 8-1001(1) places the bur-den on the person failing to provide a breath sample to show that the failure was caused by a medical condition unrelated to alcohol or drugs. A “test refusal” is defined as “a person’s failure to submit to or complete any test, other than a pre-liminary screening test.” In this case, Almon failed to com-plete the test and provide an adequate sample. He did not offer any evidence showing that the belching was caused by a medical condition unrelated to any ingested alcohol or drugs. He did not meet his burden of proof. The driver’s license suspension for test refusal stands. Almon v. Kansas Dept. of Revenue, 111 P.3d 198, 2005 WL 1136812 (Kan. App. May 14, 2005).

ASSESSING COSTS OF NUISANCE ABATEMENT Unpublished Opinion

Othel Jones was sent a violation notice from the city of Topeka Code Compliance department regarding five inoper-able vehicles on his property and maintaining a nuisance on his property. The notice gave him 10 day to either repair the vehicles, fully enclose them in a building or remove them from the property. The nuisance on his property involved old appliances, bags of trash, etc. located on his property. He also had 10 days to abate the nuisance. The notice went on to state that if he did not abate the nuisance, the City would abate it and bill him for the costs. Jones did not seek a hearing within the 10 days and the City applied for and got a search warrant to go on the property and seize the offending property. The City then sent him a bill for $1,244.80 in fees and penalties. Jones appealed the assessment of penalties. In City of Topeka v. Jones, 2005 WL 3289418 (Kan.App. Dec. 2, 2005), the Kansas Court of Ap-peals examined Topeka’s internal nuisance procedure and upheld the assessment of costs and penalties pursuant to the ordinance.

THE FEDERAL HIGHWAY ADMINISTRATION MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES FOR

STREETS AND HIGHWAYS (MUTCD) IS A GUIDELINE ONLY AND HAS NO FORCE OF LAW

Unpublished Opinion Brian Hanley was found guilty by the Wichita Municipal Court of speeding. He appealed on the basis that the City of Wichita “violated federal and state standards by setting a speed limit below that mandated by the MUTCD and by not

performing traffic engineering surveys at the accepted 5-year interval.” In an unpublished opinion, the Kansas Court of Appeals held in City of Wichita v. Hanley, 2005 WL 3455422 (Kan. App. December 16, 2005), that the Federal High-way Administration Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) is a guide-line only and has no force of law. Although the MUTCD specifies minimum standards for safety, it does not limit the authority of a governmental entity to achieve a higher level of safety. Although the 35 mph speed limit was lower than that recommended by the MUTCD, the City is within its authority to adopt its own speed limits. In addi-tion, the Court pointed out, K.S.A. §8-1560 clearly gives local authorities in their respective jurisdictions the power to decrease the speed limit within any residence district. The defendant’s speeding conviction stands.

Unpublished Opinions

Scott City Municipal Court Age Restriction Reports

In Scott City Municipal Court, the Municipal Judge requires that age-restricted drivers with traffic violations complete a report about a visit to an insurance agent. Depending on the violation, the number of words, due date etc. may vary. The judge gives the offender an instruction sheet, as well as the statute number of the state laws or city ordinances that they must write out in hand as part of the report. They must define the terms “liability” and “negligence” and answer questions concerning the various types of insurance (liability, collision, medical, and comprehensive), designate what type of insurance they have on their vehicle, explain how their driving record impacts their insurance, and state what their liability limits are. He also may make them present the report in open court. He will reduce the fine if the report is successfully completed. To verify that the offender had spoken to an insurance agent, he uses the following form, that the offender must return with to court:

Scott City Municipal Court Name:_________________ Case #. _____________ I do hereby certify that ___________________ has been to my office to discuss insurance and how an individual’s driving re-cord effects insurance and other insurance information as re-quested by the Court. Date: ________________ Agent:___________________

22

C/O Overland Park Municipal Court 12400 Foster Overland Park, KS 66213 (913) 327-6852►Fax-(913) 327-5701 [email protected]

The Verdict

Issue 29 Winter 2006

KMJA BOARD OF DIRECTORS President.........................................…………………..….Philip Durr (Sterling) President-Elect..............................................……...Candace Lattin (Pawnee Rock) Secretary....................………………………………..…Randy McGrath (Lawrence) Treasurer....................................................………………...Kay Ross (Plainville) Past-President..............................................…………...…Jill Michaux (Rossville)

Directors: Northwest District.……..…......Dorothy Reinert(Atwood).....…….......……....…......…......…....………...2006 Southeast District…...…..…......Mike Hull(Chanute).....................……....………..……...…..…………....2006 North Central District……….….Scott Condroy (Concordia)…….....….........…..….……..…....….….……..2008 Southwest District.........…….....John McLaughlin (Cimarron)………….......….....……..…......…..…….….2008 South Central District.......…......Anna L. Bell (Medicine Lodge).….............….......…...…..….....…...….….2007 Northeast District..........…….....Ken Lamoreaux (Waterville)..........…............……........………………….2007 .

MUNICIPAL JUDGES’ TESTING AND EDUCATION COMMITTEE Tom Buffington............Marquette Karen Arnold-Burger.........Overland Park Lee Parker.....Andale Jay Emler....................Lindsborg James Wells.....................Topeka

MUNICIPAL COURT MANUAL ADVISORY COMMITTEE Jay Emler......Lindsborg Patrick Caffey....Manhattan Connie Sams....Ottawa James Wilson......Mulvane Dorothy Reinert....Atwood Karen Arnold-Burger........Overland Park Tom Buffington......Marquette Bette Lammerding...Marysville

BOARD OF EDITORS

THE VERDICT

Editor.....Karen Arnold-Burger (OP) Correspondents... .....John McLoughlin (Cimarron) .......Bryce Abbott (Wichita) .......Pat Caffey (Manhattan) ....William Thompson (Belleville) .......Bob Nicholson (Paola) .......Cathy Lucas (Sublette) There’s room for lots of correspondents!! Please vol-unteer by sending in an article or idea.

All KMJA dues should be sent to:

Kay Ross 610 S.W. 9th

Plainville, KS 67663 If you have any questions, you can reach her at (785) 434-2018.

Interested in serving on the KMJA Board of Directors? At the April 2006 meeting the following positions will be up for election:

President-Elect Secretary Treasurer

Northwest Director Southeast Director

See map above to determine your region. Anyone interested should contact

President Phil Durr

Northwest

Southwest

South Central

North Central Northeast

Southeast

court watch - kmja.org-topeka cheryl kingfisher -emporia ted hollembeak 2006 conference reminders...

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