may 2016 journal

Your Partner in the Profession | May 2016 • Vol. 85 • No. 5

Trends in the Paralegal ProfessionP7

A Special Presentation of Law WiseP51

Two Opinions:Separation of Powers and Strength of the Judiciary

http://www.lawpay.com/ksbar

www.ksbar.org | May 2016 3

Regular Features6 | KBA President

By Natalie G. Haag

8 | YLS President By Justin Ferrell

18 | The Diversity Corner By Merideth J. Hogan

20 | Data is a Toxic Asset By Larry N. Zimmerman

23 | Members in the News

50 | Upcoming CLE Schedule

44 | Appellate Decisions

48 | Appellate Practice Reminders

63 | Classified Advertisements

30 & 38 | Opinions:

Cover design by Ryan Purcell

7 | Trends in the Paralegal Profession By Cheryl Clark

16 | Celebrating 60 years of the KBF

24 | Attorneys Join KLS for a 'Second Season of Service' By Marilyn Harp

26 | Be the Best There Is—No More, No Less By Betsy Six

30 | Opinion: Don't Tread on Me The Separation of Powers and the Need for a Strong Judiciary By Nick Badgerow

38 | Opinion: Testimony Concerning the Separation of Powers and the Judiciary By Lumen Mulligan

51 | A Special Presentation of Law Wise

By Nick Badgerow and Lumen MulliganSeparation of Powers and the Judiciary

4 The Journal of the Kansas Bar Association

Let your VOICEbe Heard!

The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year.

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association. Copyright © 2016 Kansas Bar Association, Topeka, Kan.

For display advertising information contact Jennifer Salva or Meg Wickham at (785) 234-5696 or email [email protected] or [email protected].

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Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.

2015-16 KBA Officers & Board of GovernorsJOURNALTH

E

OF THE KANSAS BAR ASSOCIATION President Natalie Haag, [email protected]

President-ElectStephen N. Six, [email protected]

Vice PresidentGregory P. Goheen, [email protected]

Secretary-TreasurerBruce W. Kent, [email protected]

Immediate Past PresidentGerald L. Green, [email protected]

Young Lawyers Section PresidentJustin L. Ferrell, [email protected]

District 1Christi L. Bright, [email protected] J. Crouse, [email protected] A. Dupree, [email protected] Mdivani, [email protected]

District 2Hon. Sally D. Pokorny, [email protected] E. Warner, [email protected]

District 3Eric L. Rosenblad, [email protected]

District 4Brian L. Williams, [email protected]

District 5Terri S. Savely, [email protected] Dennis D. Depew, [email protected] L. Whelan, [email protected]

District 6Tish S. Morrical, [email protected]

District 7Gary Ayers, [email protected]. Jeffrey E. Goering, [email protected] J. Michael Kennalley, [email protected]

District 8John B. Swearer, [email protected]

District 9David J. Rebein, [email protected]

District 10Jeffery A. Mason, [email protected]

District 11Nancy Morales Gonzalez, [email protected]

District 12William E. Quick, [email protected]

At-Large GovernorBruce A. Ney, [email protected]

KDJA RepresentativeHon. Michael F. Powers, [email protected]

KBA Delegate to ABALinda S. Parks, [email protected] K. Pirner, [email protected]

ABA State DelegateHon. Christel E. Marquardt, [email protected]

ABA YLD DelegateVincent Cox, [email protected]

Executive DirectorJordan E. Yochim, [email protected]

Our MissiOnThe Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

Richard D. Ralls, chair, [email protected] Savely, BOG liaison, [email protected]. David E. Bruns, [email protected] A. Byers, [email protected] Emily Grant, [email protected] S. Hamilton, [email protected] J. Jackson, [email protected] T. Jilka, [email protected] R. Jones, [email protected]. Janice Miller Karlin, [email protected] R. Law, [email protected] L. Miller, [email protected]. Robert E. Nugent, [email protected] John C. Peck, [email protected] K. Pirner, [email protected] Karen Renwick, [email protected] Salva, Journal Editor, [email protected] M. Schreffler, [email protected] H. Seaton Sr., [email protected] B. Shattuck, [email protected] D. Smith, [email protected] M. Snyder, [email protected] A. Spurgin, [email protected] A. Walter, [email protected] Wickham, staff liaison, [email protected] Issaku Yamaashi, [email protected] Yoza, [email protected]

The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Jennifer Salva, Journal Editor at [email protected].

2015-16 Journal Board of Editors


From time to time the Board of Editors of your KBA Journal has received letters and opinion pieces submitted for publication consideration. The Board has steadfastly remained focused on a mission of publishing researched, footnoted, substantive legal articles on the state of the law. Our goal has been to provide information useful to our KBA membership in everyday practices.

With this edition of the Journal, we announce the trial of a more expansive policy just adopted by the Board. We will now consider opinion pieces and letters to the editor for publication. Our first foray into this area follows.

In coming editions we may publish submissions that fall within our new guidelines, which are separately published herein. These include opinion pieces that are well reasoned, with legal au-thority, which would be of broad interest to our readership.

This policy has been adopted on a trial basis and will be reviewed within the next two years. Although we will publish a broader range of articles, we remain primarily focused on the publica-tion of practical legal articles. We do invite substantive legal article ideas, submitted by proposed authors, which further our primary mission. Please review additions to our policy on page 56 of the Journal.

Notification of Policy Change

— Richard D. Ralls, Chairman, Board of Editors

http://www.ksbar.org/vendormarketplace


Nothing can trump an election year for crazy news and political antics. You should be excited that the KBA just completed the Board of Governor elections with-

out any smear campaigns or ugly commercials. Of course, the KBA does have at least one issue in common with political elections: low voter turn-out. All KBA members are eligible to vote, yet the historical data shows that only an average 23 percent of the eligible voters actually cast a ballot in the KBA elections in the past three elections. This is your opportunity to select future bar leaders from a number of extremely quali-fied candidates. If you don’t know the candidates, check out the published bios or ask a colleague. The elections are profes-sional and low key. I’d encourage you to look closely at the ballot next year.

In contrast to the low key KBA election, judicial retention elections are already trumping up a number of soundbites and political cartoons. Based upon the number of legislative bills introduced to expand the impeachment process for judges and limit the authority of the courts, special interest groups urging members to vote against retention, and the other po-litical commentary issued about the courts during 2016, we can expect a lively judicial retention process. This is my way of reminding you that 2016 is not the year to “sit out” the elec-tion because it could have a significant impact on our judicial system.

Since soundbites and vote “no” postcards are not good ways to assess the qualifications of a judge, I encourage KBA mem-bers to help educate their neighbors, friends and colleagues about the important role that judges play in our legal system. Watch for the 2016 Judicial Review Survey and share it with other voters (http://www.kansasjudgereview.org/). Don’t for-get that many of the justices and judges on the ballot have committees working for their retention and, in some com-munities, their election. I’m sure they will welcome your help in this effort.

While I plan to join many of you in my efforts to avoid the proliferation of phone calls and television advertisements that mark the election season, I don’t want any of us to avoid the entire election. As lawyers, we are well educated, well re-spected, and prominent members of our community. Please encourage your friends, family and neighbors to vote. If every one of us votes and convinces one prior non-voter to exercise this right, imagine the impact this could have on Kansas in 2016. Just vote!

Sorry, No PhotosMy KBA business this month has been limited to confer-

ence calls and email which do take time, but they don't create any fun or interesting photo opportunities. Instead, I spent four weekends in a row attending and officiating swim meets. In fact, I’ve visited with several of you during these events. Since I took a breather from KBA and work road trips, I feel comfortable encouraging you to take a break and just relax. So plan some fun for 2016 and consider attending the KBA Annual meeting as one of your enjoyable breaks from work this June! I’d love to see you all there.n

kba president

Nothing can Trump an Election Year!

About the KBA President

Natalie G. Haag currently serves as executive vice president/general counsel for Capitol Federal Savings Bank. She has been a member of the Kansas Bar since 1985, and received her bachelor’s degree from Kansas State Univeristy in 1982 and her law degree from Washburn University School of Law in 1985.

[email protected]



As technology innovations continue to permeate the le-gal profession, paralegals have realized tremendous op-portunities to develop the skills needed to apply these

tools to benefit the lawyers they work with. In response to market demands, paralegal educators are adapting their pro-grams to keep up with industry demands. Paralegal programs are becoming more popular. The availability of continuing legal education courses related to technology is increasing. Office managers are changing their training policies to better prepare today’s paralegals for success in the workforce.

Paralegal roles are expanding, and law firms are looking for multiple skills and a wide variety of experience when they hire paralegals. Paralegal educators agree that a combination of strong technology skills, writing and communication skills, and hands-on experience help paralegals find a job when they get ready to enter the workforce. Other hot trends in paralegal education and CLE include e-learning and a greater demand for certain paralegal specialties.

Technology TrainingAs legal employers look for paralegals with advanced tech-

nology skills to increase their productivity, these skills are now essential for paralegals entering the workforce. Tech-savvy paralegals will always have the advantage in the legal job mar-ket. Technology skills can be developed by firms that take the time to train their paralegals through continuing education classes and allowing them to attend legal seminars. Some larg-er firms hold monthly training sessions for their paralegals, covering a variety of topics related to technology.

In many law offices, attorneys rely on paralegals to select, manage and operate law-related software. They assist in e-dis-covery, understand and manage databases, facilitate case man-agement software, create searchable electronic documents, and orchestrate the technology aspects of trial presentations. As a result, paralegal programs are expanding their technology offerings and are training students on a diverse array of word processing, spreadsheet, timekeeping, trial presentation, legal research and case management software. It is impossible for paralegal programs to teach every form of legal software avail-able, but it is necessary for paralegal programs to introduce their students to new concepts and provide education in these areas. The more paralegals know about technology and legal software programs, the more job security they will have when they enter the workforce.

The growth of litigation support and the world of e-discov-ery have also prompted the increase of technology training in both paralegal programs and within law firms. The need for formal training is critical to the continued growth and ad-vancement of the paralegal profession and those working in the area of litigation. Paralegals should strive to become the go-to person for technology applications and uses.

Enhanced Communication SkillsAnother major trend in paralegal training and education is

a focus on fundamental skills such as legal writing, communi-cation and marketing. Many paralegal educators believe that students today lack oral and written communication skills

that are needed in the legal profession. Educators are aware of and concerned with the lack of such basic skills for those entering their programs. As a result, programs are starting to place more emphasis on writing skills. Many paralegal educa-tors believe employers should be asking for a writing sample from prospective paralegals.

Distance LearningDistance learning, also known as e-learning, is one of the

fastest-growing segments of higher education. Media and in-teractive technologies have increased the e-learning possibili-ties in both academic and workplace settings. The flexibility of taking classes at any time from any location is the norm in education today. Distance learning appeals to all students, and is especially popular among students with families who work full time jobs and have other obligations in their busy lives. Online continuing education classes are an excellent way for paralegals to make themselves more marketable, not only if they are looking to change jobs, but also if they are seeking to advance in their current place of employment.

As the paralegal profession evolves, legal specialties grow. Paralegal specialties popular in today’s legal market include bankruptcy, immigration, litigation, collections/foreclosure and intellectual property. Electronically stored information is causing the growth of e-discovery and litigation as support specialties.

Education is key in the paralegal profession today. Over the last few years, the KBA Paralegal Committee has lost some valuable attorney and educator members to retirement. We would like to recognize those members at this time: Anita Tebbe, who retired from Johnson County Community Col-lege last year; John Conlee, who first served as the director of the paralegal program at Wichita State University and then joined Newman University as the director of their paralegal program, and Kaye Rute, who retired from Washburn Uni-versity. These members provided knowledge and direction to our committee, and are greatly missed. n

Trends in the Paralegal Profession

About the Author

Cheryl L. Clark, has a combined 40 years of experi-ence in the legal field and has worked for the law firm of Fleeson, Gooing, Coulson & Kitch, L.L.C for the last 19 years. She obtained her associate's degree in legal assistant studies from Hutchinson Community College in 1990, her Certified Legal As-sistant (CLA) designation in 1993 and her Advanced Certified Paralegal (ACP) designation in 2006 from the National Association of Legal Assistants. She is a past chair and current member of the KBA Paralegal Committee, past president of the Kansas Association of Legal Assistants, and a past member of the Certifying Board for the National Association of Legal Assistants. She currently serves as chairper-son of the KBA Task Force for state certification for Kansas Paralegals, and is coordinator of the parale-gal program at Hutchinson Community College. [email protected]

paralegal professional


Searching for Balance as a Young Lawyer

When I first walked through the doors of Washburn Law School as 1L, I had no clue what I wanted to do with the law degree that I would be working

so hard to obtain. All I knew was that I had wanted to go to law school for a long time, I had worked for the opportunity and now I was ready to embrace the challenges that lay ahead. Those challenges, while in a different form, still exist today.

Law school challenged all of us, from class, to outline draft-ing, to finals, and bar prep. It has to get easier after all of that, right? Well, the challenges and rigors of law school were replaced by “real life” challenges such as finding a good job, starting a family, balancing that work and family, and still try-ing to find time to keep myself healthy as well. My biggest challenge as a young lawyer was that a few years after graduat-ing from law school and taking a job as an in-house attorney for the Kansas County Association Multiline Pool, the deci-sion was made to move from Topeka to Concordia, Kan., a two hour drive from the job I was going to keep in Topeka. Thus started the odyssey of commuting to Topeka every week to work a few days in our office here! “I won’t do this for long,” I thought to myself, but my love of my job in Topeka, and starting a family in Concordia has, to this day, kept me driving back every week.

It’s certainly not easy. Not being at home every night to see my two daughters has been the toughest part of my entire career. But I knew that Concordia was the type of place I wanted my children to grow up in. And, I still love my job. It’s all about balance. When I am home and working, I make as much time as I can for my daughters (weekends are filled with all types of adventures). It works well for my family, and we have a routine that works well for us. That is the challenge that I, along with everyone else in any career, must try to mas-ter: balance. Such a simple word, but so very complicated to implement.

When I first started law school, I was convinced that I would be working 80 hour weeks, knocking out huge cases and spending very little time at home. Likely a family would be put on hold, or never happen. My, how such things change! My view of my career now, compared to my view of what I thought it would be as a 22-year-old 1L couldn’t be more dif-ferent. I strive to be successful in my job as it’s very important to me, but what is even more important is my family. My two daughters need a dad more than they need a successful, high-powered attorney. But, if I take a step back and look, I am a successful attorney, I have a job I love that allows me to help people everyday, two little girls who look up to me, and for the most part, a healthy mind and body.

Many times we mistakenly believe that in order to be suc-cessful in one aspect of our lives, then another aspect must suffer, or not be tended to with the time and care it needs. I disagree. Life is, and has always been, about balance; find-ing the balance between work and family life is imperative. I believe if you spend too much time on one aspect of life, you will fail in others. In order to balance my life, I spend as much of my free time with my daughters, I exercise over lunch when I am at home working, I exercise in the evenings, and then go back into the office to work at night when I am in Tope-ka. Weekends for the most part are dedicated to spending as much time as possible with my girls. This routine has, for the most part, allowed me to keep my work, family, and health in good balance. It’s not perfect, and sometimes it seems to favor one aspect over another—but I strive everyday to maintain the best balance I can. n

Justin Ferrell serves as in-house counsel/risk manager for the Kansas County Association Multiline Pool in Topeka. He currently serves on both the TBA Young Lawyers and KBA Young Lawyers in many capacities.

[email protected]

About the YLS President

yls president


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Privilege for Hire

QuestionWith a flagging economy, corporate employers are more

frequently engaging independent contractors. Often, these contract employees perform important functions within the organization, and many times their jobs bring them into con-tact with the company’s lawyers. But does the independence of these contractors mean that communications with compa-ny’s lawyers are not protected by the attorney-client privilege? As with the answer to most legal questions, the answer is, “It depends.”

The Attorney-Client PrivilegeThe attorney-client privilege is denominated a narrow one,

and it will often be narrowly construed.

It is a “venerable legal axiom that privileges are to be narrowly, not expansively, construed.” Hill v. Sandhu, 129 F.R.D. 548, 550 (D. Kan. 1990) (citing United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L. Ed. 2d 1039 (1974)).1

On the other hand, because of the precedence of the privi-lege in American law, most courts will narrowly construe ex-ceptions to the privilege.

The importance of the attorney-client privilege in American jurisprudence is well-established. See Cincin-nati Ins. Co. v. M.S. ex rel. Serrano, No. 11-2075-JAR/KGG, 2011 WL 6304086 (D. Kan. Dec. 16, 2011) (citing Milavetz, Gallop & Milavetz, P.A. v. U.S., 130 S. Ct. 1324, at n. 5 (2010) (holding that the attorney-client privilege is an important “means of protecting that relationship and fostering robust discussion” be-tween a party and its counsel)). As such, waivers of the privilege are to be narrowly construed. Id.2

Communications with Every Employee are Not Protected

The attorney-client privilege extends to communications between a corporation’s attorney and many (though not all) of the corporation’s employees.

[I]n the corporate context, however, it will frequently be employees beyond the control group as defined by the court below—“officers and agents . . . responsible for directing [the company’s] actions in response to le-gal advice” –who will possess the information needed by the corporation's lawyers. Middle-level—and indeed lower-level— employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the cli-ent with respect to such actual or potential difficulties. [Upjohn Co. v. United States,] 449 U.S. [383,] at 391, 101 S. Ct. [677], at 683 [(1981)].3

Not Every Communication is PrivilegedThe privilege does not extend to every communication,

even between a lawyer and his client’s employees in the con-trol group. The courts essentially apply a five-part test.

The factors to be considered are these: (1) the com-munication was made for the purpose of securing legal advice; (2) the person making the communication did so at the direction of his superior; (3) the superior re-quested that the communication be made so that the client could secure legal advice; (4) the subject matter of the communication was within the scope of the rep-resentative's duties; and (5) the communication was not disseminated beyond those persons, who because of the structure of the client's operations, needed to know its contents.4

attorney ethics


Does the Attorney-Client Privilege Extend to Independent Contractors?


The Privilege Extends to ContractorsMany cases apply the attorney-client privilege to corporate

counsel’s communications with independent contractors.5

But The Privilege for Contractors Has LimitsHowever, the privilege will not be extended to communica-

tions with any independent contractor, but only to one who is considered the “functional equivalent” of an employee in a key role.

Courts considering the issue of privilege as to com-munications with independent contractors and outside agencies have closely examined the relevant facts of each respective case in an effort to determine whether pro-tecting the communication furthers the purpose and policy behind the attorney-client privilege. . . . “The purpose of the privilege is ‘to encourage clients to make full disclosure to their attorneys.’ To that end, the privi-lege protects communications between a client and an attorney, not communications that prove important to an attorney’s legal advice to a client.” Id.[6](citing Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976)). “[A] communication between an attorney and a third party does not become shielded by the attorney-client privilege solely because the com-munication proves important to the attorney's ability to represent the client.” Id. . . .

More recently, another case in the Southern District of New York, Export-Import Bank v. Asia Pulp & Paper Co., Ltd., [232 F.R.D. 103, 113 (S.D. N.Y. 2005)] distilled the “functional equivalent” test down to three basic ele-ments: (1) “whether the consultant had primary respon-sibility for a key corporate job,” (2) “whether there was a continuous and close working relationship between the consultant and the company's principals on matters critical to the company's position in litigation,” and (3) “whether the consultant is likely to possess information possessed by no one else at the company.”7

Thus, the court will consider favorably that the indepen-dent consultant regularly worked with employees on the proj-ect at issue, that the nature of his/her work was identical to the type of work performed by actual employees, and he/she

was subject to similar levels of direction and supervision by the employer.8

To determine whether a consultant should be consid-ered the functional equivalent of an employee, courts look to whether the consultant had primary responsi-bility for a key corporate job, In re Bieter, 16 F.3d at 933-34; Ross [v. UKI Ltd.], 2004 WL 67221, at *4 [(S.D.N.Y. Jan. 15, 2004)], whether there was a contin-uous and close working relationship between the con-sultant and the company's principals on matters critical to the company’s position in litigation, In re Bieter, 16 F.3d at 938; In re Copper Market [Antitrust Litigation], 200 F.R.D. [213] at 219 [(S.D.N.Y. 2001)]; Ross, 2004 WL 67221, at *4, and whether the consultant is likely to possess information possessed by no one else at the company, In re Bieter, 16 F.3d at 938.9

The appellate courts that have considered this issue have also applied a functional equivalent test.10

Of course, when the independent contractor does not meet these tests, a lawyer’s communications with that contractor will not be deemed privileged.11

So, depending upon the job duties assigned to an indepen-dent contractor and the nature of the communications by the employer’s attorney with that contractor, such communica-tions may well be considered protected by the attorney-client privilege.

EndnotEs

1 Mason v. Stock, 869 F. Supp. 828, 833 (D. Kan. 1994). See also, Nat’l Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994)(The attorney-client privilege and work-product immunity doctrines are narrowly construed.).

2 Heglet v. City of Hays, 2014 WL 1308893, at *3 (D. Kan. Mar. 31, 2014).

3 Chancellor v. Boeing Co., 678 F. Supp. 250, 251 (D. Kan. 1988). 4 In re Bieter Co., 16 F.3d 929, 938-39 (8th Cir. 1994). 5 In re Flonase Antitrust Litigation, 879 F. Supp. 2d 454 (E.D. Pa.

2012); In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D. N.Y. 2001); Beneficial Franchise Co., Inc. v. Bank One, N.A., 205 F.R.D. 212, 215 (N.D.Ill. 2001); In re Air Crash Disaster at Sioux City, Iowa, 133 F.R.D. 515, 518 (N.D. Ill.1990).

6 United States v. Graf, 610 F. 3d 1148, 1158-92 (2000).7 LG Electronics U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp. 2d 958,

961, 963 (N.D. Ill. 2009).8 See McAdam v. State National Insurance Co., 15 F. Supp. 3d 1009,

1020 (S.D. Cal. 2014).9 Export-Import Bank of United States v. Asia Pulp & Paper Co., Ltd., 232

F.R.D. 103, 113 (S.D. N.Y. 2005). See also, Alliance Const. Solutions, Inc. v. Department of Corrections, 54 P.3d 861 (Colo. 2002)(independent contrac-tor was “functional equivalent” of employee, and above factors were met, so communications were privileged).

10 See United States v. Graf, 610 F.3d 1148, 1158-59 (9th Cir. 2010); Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 147-48 (D.C. Cir. 2002); In re Bieter Co., 16 F.3d 929, 936-38 (8th Cir. 1994); see also Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 491-92 (2000).

11 Neighborhood Development Collaborative v. Murphy, 233 F.R.D. 436 (D. Md. 2005); Export-Import Bank of United States v. Asia Pulp & Paper Co., Ltd., 232 F.R.D. 103 (S.D. N.Y. 2005).

J. Nick Badgerow is a partner with Spencer Fane Britt & Browne LLP in Overland Park, and is a trial lawyer practicing mainly in the areas of construction, employment, and professional responsibility. He is a member of the Kansas Judicial Council, and Chair of the Judicial Council’s Civil Code Committee; member of the Kansas State Board of Discipline for Attorneys; Chair of the KBA Ethics Advisory Opinion Committee; and Chair of the Johnson County (Kansas) Ethics & Grievance Committee. Nick was Chairman of the Kansas Ethics 2000 Commission and the Kansas Ethics 20/20 Commission, and he was the editor and a co-author of the KBA’s Ethics Handbook (Third Edition).

[email protected]

About the Author

attorney ethics


law students' corner

Life at an Indian Law Firm

This summer I had the opportunity to work as an intern with the firm J. Sagar and Associates in Gurgaon, India, a suburb of New Delhi. I got the job by talking to a former KU Law student, Aqmar Rahman, who had done the same pro-gram. I went with the hope of working in international trade law and experiencing a new culture. Although I didn’t get the chance to work on any international trade law projects, I’m very grateful for the chance I had to see what life is like at an Indian law firm and in India in general.

At J. Sagar, I worked alongside 10 other interns, all from various parts of India. This turned out to be quite the stroke of luck. In terms of work, the other interns helped me navi-gate the Indian legal landscape, introducing me to Westlaw India and explaining how to find government agency orders, a common work project. Thankfully, India is a common law country, and in some areas of the law, such as antitrust, even looks to U.S. courts as persuasive authority. Outside of work, the other interns did everything from teach me Hindi phrases to help me catch buses. We ate lunch together in our build-ing’s top-floor café with a nice view of the city.

The work itself, like most legal work in my experience so far, ranged from the exciting to the technical. In the former category were advising the head competition law partner on a question of U.S. antitrust law and researching state require-ments for setting up an alcohol manufacturing plant, while the latter included a tedious calculation of the average time the EU Competition Commission has taken to review merg-ers over the past three years. I did a variety of legal research projects–looking up government orders, exploring antitrust issues, and examining factors influencing and inhibiting the growth of the Indian logistics sector.

My most enriching project was researching the tax laws on setting up an alcohol manufacturing facility in different In-dian states. I didn’t have any background in tax law or Indian

law, but after learning how to navigate Indian research tools, I was able to find answers. The project gave me the feeling that if I can figure out something like this, which I had absolutely no clue about before I started, I can probably figure out most things.

In addition to work, I was thankful for the opportunity to travel and experience the Indian culture. In just this small area of the country, there was an incredible amount of religious, linguistic and culinary diversity. The fact that India can func-tion as a democracy with this kind of diversity never ceased to amaze me. I was able to see the Taj Mahal, the Sikh’s Gold-en Temple, and went on a memorable three-day hiking and camping adventure in the Himalayas. I also went ice skating in a mall with my fellow interns, something I certainly hadn’t expected to do in India. Lastly, I greatly enjoyed the food and drink of India, especially the ever-present cups of tea.

Although I didn’t have the chance to work on an interna-tional trade law project, regardless of the specific project, since J. Sagar is a “big law” firm in India, practically all the work in-volved an international component or some nationwide mat-ter. I enjoyed being exposed to these big-picture issues, and the experience helped me realize that I may enjoy working in a large firm someday here. Many thanks to J. Sagar for making this experience possible for me. n

About the Author

Ben Baumgartner is a third year law student at the University of Kansas School of Law. He received his Bachelor’s degree in Religious Studies from Goshen College in Goshen, IN. Next year he will be clerk-ing for the U.S. Court of International Trade in New York, NY.

[email protected]

Ben poses in front of the Lotus Temple, a Baha'i House of Worship in New Delhi, India, while working as an intern with J. Sagar and Associates in 2015.


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Meet your new Kansas Bar Foundation IOLTA Coordinator!


A Kansas native, Janelle Hill has a passion for law and commu-nity service that developed in her formative years. She remembers attending Neighborhood Improvement Association meetings as a young child, and assisting her mother with community events. Growing up, Hill looked up to her mother who was a union stew-ard for a number of years. “Watching my mom fight every day on behalf of her coworkers and be the voice of employees for a nationwide organization encouraged me to want to make a differ-ence by advocating for individuals as well.”

Hill has been an employee of the Kansas Bar Association since September 2014. Before she became the IOLTA Coordinator, she was the Public Outreach and Education Coordinator for the Law-yer Referral Service. She received her bachelor's degree in business administration from Washburn University with an emphasis in management and marketing. Hill plans on ending her employ-ment with the KBA Lawyer Referral Service and focusing solely on your IOLTA needs by the fall of 2016, at which time she will also begin classes at Washburn University’s School of Law.

Her volunteer experience is extensive, and involves organiza-tions such as the United Way Christmas Bureau, Helping Hands Humane Society, Junior Achievement, Big Brothers Big Sisters, and Fast Forward, among others. In her free time, Hill enjoys reading, attending church, cooking, and spending time with her family. She looks forward to partnering with the Kansas bankers to assist banks and attorneys with IOLTA accounts and inquiries. She welcomes you to contact her with any questions or sugges-tions you might have at [email protected]. n

kansas bar foundation

We will soon be planning the next revision for the following pamphlets:• Child Custody, Support & Visitation• Aging and the Law• Marriage & Divorce• A Death in the Family…What Should I do?• Introducing Your Lawyer

In 2015, over 18,000 pamphlets were distributed to KBA members and the public. You can view a list of KBA pamphlets at http://www.ksbar.org/pamphlets.

Interested in Being an Author of a KBA Public Service Pamphlet?

Contact Anne Woods for additional information (785) 861-8838 or [email protected]

http://www.ksbar.org/pamphlets


kansas bar foundation

... serving the citizens of Kansas and the legal profession through funding chari-

table and educational projects that foster the welfare, honor, and integrity of the

legal system by improving its accessibility, equality, and uniformity, and by enhanc-ing public opinion of the role of lawyers

in our society.

OFFICERSLaura L. Ice Wichita President [email protected]

Todd N. Thompson Lawrence President-elect [email protected]

Hon. Evelyn Z. Wilson Topeka Secretary-Treasurer [email protected]

Edward J. Nazar Wichita Immediate Past President [email protected]

BOARD OF TRUSTEESSusan A. Berson Overland ParkJohn C. Brown Hays Terrence J. Campbell LawrenceAmy Fellows Cline WichitaBradley D. Dillon HutchinsonGregory P. Goheen Kansas City, Kan.James L. Hargrove El DoradoRichard F. Hayse TopekaScott M. Hill WichitaRandee Koger McPhersonAaron L. Kite Dodge CityAmy E. Morgan Overland ParkDavid H. Moses Wichita C. David Newbery TopekaEric L. Rosenblad PittsburgSusan G. Saidian Wichita

Sarah E. Warner Lawrence Young Lawyers Representative

Jeffrey L. Carmichael Wichita Kansas Association for Justice Representative

Patrice Petersen-Klein Topeka Kansas Women Attorneys Association Representative

Nathan D. Leadstrom Topeka Kansas Association of Defense Counsel Representative

Sara S. Beezley Girard Kansas Bar Association Representative

Charles E. Branson Lawrence Kansas Bar Association Representative

Dennis D. Depew Topeka Kansas Bar Association Representative

EXECUTIVE DIRECTORJordan E. Yochim Topeka [email protected]

DIRECTOR, PUBLIC SERVICES Anne Woods Topeka [email protected]

Need a Trust Account?Consider IOLTA

The Interest on Lawyers Trust Accounts (IOLTA) program is an idea that originated in British, Canadian and Australian jurisdictions in the 1960s. In the U.S., IOLTA was pioneered in Florida and now exists in every state in the country. The Kansas IOLTA program was established in 1984.

Through IOLTA, attorneys and law firms place IOLTA–eligible client funds in a pooled interest bearing trust account. IOLTA funds support the following:

• Legal services to the disadvantaged• Public education about the law• Administration of justice programs and other programs as approved by the court

Without IOLTA, nominal or short term client funds held in non-interest bearing, pooled check-ing accounts benefit neither the client nor the lawyer. Under IOLTA, these same nominal or short-term funds are still pooled into one account. However, Kansas banks may remit interest on these pooled accounts to the Kansas Bar Foundation. Each year, the IOLTA Committee selects organi-zations to receive IOTLA grants. In the past few years, approximately $80,000 per year has been distributed to organizations in Kansas that provide civil legal services to low-income Kansans.

It is easy to join almost 4,000 Kansas attorneys who are part of the IOLTA program

• Complete the IOLTA Application. Visit www.ksbar.org/iolta to print an application.

• Take the completed and signed application to an interest bearing approved financial institution. There is a list of approved institutions on www.ksbar.org/iolta.

• Mail, fax or email a scanned copy of the completed and signed KBF IOLTA application to

Kansas Bar Foundation1200 SW Harrison St. Topeka, KS 66612-1806Fax: (785) 234-3813Email: [email protected] (please put IOLTA Application in the subject line)

IOLTA would not be possible without the commitment of 245 Kansas banks that have agreed to provide IOLTA to their customers. The support of these banks and the staff that provide monthly or quarterly reports to the Kansas Bar Foundation is invaluable! Thank you Kansas banks! You can view a list of IOLTA banks at http://www.ksbar.org/iolta.


The Kansas Bar Foundation (KBF) is approaching its 60th an-niversary. In 1957 a special committee of the Kansas Bar As-sociation recommended the establishment of the Kansas Bar Foundation to the KBA Board of Governors.

What is the mission of the KBF?The mission of the Kansas Bar Foundation is “…to serve the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor and integrity of the legal system by improving its acces-sibility, equality and uniformity, by enhancing public opinion of the role of lawyers in our society.”

What does the KBF do?The Foundation provides funding for legal services to the dis-advantaged and law related educational resources to the pub-lic. A primary objective is to secure access to justice by fund-ing numerous pro bono programs. For example, grants have provided legal advice and representation for senior citizens, survivors of domestic violence, children in the court system, and others. In addition, KBF dollars have supported educa-tional projects such as the KBA YLS Mock Trial program and KBA educational booklets for middle school and high school students

How does the KBF do this?The Foundation is supported by donations from attorneys, the IOLTA program, and various grants provided by Cy Pres settlements and other court ordered settlements.

FellowsMembers of the KBF are called Fellows. A Fellow is a per-son admitted to practice law under the Rules of the Kansas Supreme Court who has contributed an aggregate total of $1,000 or has pledged in writing to contribute at least $1,000 in 10 or fewer consecutive annual installments. Contribu-tions after $1,000 are categorized in levels.

How do I make this commitment? It is easy. You can complete your pledge form in this article and send it to the KBF. We will process your initial gift and track your progress toward becoming a Fellow. In addition, you will be invited to attend the annual Foundation Dinner. This year, the dinner will be on June 16 at the Hyatt-Wichita. Although the dinner is designed to recognize new Fellows and Fellows reaching new levels, any KBA member is welcome to attend. This is also the time the KBF presents the Robert K. Weary Award to an attorney who exemplifies the mission of the Foundation.

IOLTAIn addition to Fellows contributing to the KBF, remittances from IOLTA are deposited to the foundation. The KBF IOL-TA Committee meets each fall to review IOLTA grant pro-posals. Approximately $80,000 is dispersed among the grant recipients. Establishing an IOLTA account is easy. Just visit http://www.ksbar.org/iolta.

Cy Pres and other court ordered settlementsAt times, the Foundation will receive funds from a Cy Pres settlement or other court ordered settlement. When this hap-pens, the KBF IOLTA Committee is responsible for making funding recommendations to the KBF Board of Trustees.

ScholarshipsSeveral KBF members have established scholarships that are administered by the Foundation. Currently, there are eight named scholarships. The KBF Scholarship Committee re-views applications in the fall and scholarships are awarded at the KBA Court Appreciation Dinner in February.

Endowments & planned givingThe KBF manages several endowments and can assist with your planned giving arrangements. Funding for law school repayment loan funds, creating a memorial or honorary gift fund, building maintenance and improvement funds, and funding for other areas are unique ways to customize your gift.

Your commitment is appreciatedSince its inception in 1957, the KBF has provided over four million dollars in grants and scholarships. We welcome you to join over 600 attorneys who have already committed to fel-lowship in the KBF. Come be part of the organization that will soon celebrate sixty years of giving to Kansas communities!

Fellow Giving Levels Fellow: $1,000 – $2,499Fellow Silver: $2,500 - $4,999Fellow Gold: $5,000 - $7,499Fellow Platinum: $7,500 - $9,999Fellow Diamond: $10,000 - $14,999Pillar of Foundation: $15,000 - $49,999Pillar of Profession: $50,000 or more

Lawyers Serving the Citizens of Kansas and Strengthening our Community


KBF Pledge FormComplete and return to:Kansas Bar Foundation1200 SW Harrison St.

Topeka, KS 66612-1806Fax: 785-234-3813

or scan and send to Anne Woods [email protected]

Today I join over 600 Fellows who have pledged $1,000 or more to the Kansas Bar Foundation.

Name____________________________________________________________________

Address __________________________________________________________________

City_____________________State ________________ Postal Code ___________________

Phone ___________________________________

Email ____________________________________

Enclosed is my tax-deductible gift or credit card number for:

___ Full payment of $1,000 or ___ The first of 10 annual contributions of $100 each, to be paid annually.

Please make check payable to Kansas Bar Foundation Signature ______________________________________________

Date_________________________

Credit Card Information:

Thank you for your commitment to the Kansas Bar Foundation!

If you prefer to pledge online, visit www.ksbar.org/kbf

Name on card

Address

City ST Zip

E-mail Sup. Ct. #

Bill to: q MasterCard q Visa q AmEx q Discover

Account Number CVC

Exp. Date Signature


Children look up to superheroes, larger-than-life char-acters born from the imaginative hand of a writer who imbues them with assorted super-humanity: strength,

speed, or an inexhaustible supply of snappy one-liners. These characters excite the imagination, spur emulation, and sell millions of dollars in merchandise, but not solely based on the abilities that make them unique. Each character must also be relatable, with failures and weaknesses, lest we place them on a lofty pedestal, unattainable and unreal.

Adults are not immune. The idols and role models we view through one-way screens suffer under the collective weight of our expectations. When we hero-worship to the extent that we filter away all but the extraordinary, the person risks be-coming a character. I think that Justice Ruth Bader Ginsburg is one such individual. She was born in Brooklyn, N.Y., in 1933. She played the cello, chipped her tooth twirling the baton, was a rabbi at summer camp, and was a member of the Go-Getters club.1Despite her ordi-nary origins, the world has come to realize that she is anything but ordinary. She shattered glass ceilings by becoming the second ten-ured female professor at Rutgers School of Law and pioneering women’s rights through influential cases, before taking her place as the second female justice on the Supreme Court of the United States.

She has inspired scores of lawyers across the nation with nothing more than the reasoned words that flow from her pen. While her small build is undisguised by her flowing black crusader’s cape, it is forgotten in the shadow of her tower-ing opinions. Every dissent packs a punch with unapologetic boldness. Beyond the legal sphere, her image has taken on a life of its own. Women don judge’s robes with ruffled collars at Halloween and tattoo her effigy on their bodies. She has become a character, the Notorious RBG—protector of civil rights and author of fire-breathing opinions. She has become an infallible illusion.

Like so many other women, I too want to be like the Noto-rious RBG—intelligent, tenacious, and quick witted. I want to stand up for what I think is right, support others in their endeavors, and use my legal education to make a difference. My form of admiration, rather than manifesting as a tattoo or costume, has been to ask myself: “What would RBG do?”

I had the opportunity to ask myself this question in Decem-ber 2015 when I heard that many of the 11 women of our 40 member Washburn Law Journal felt excluded because of their gender. As an editor for the Journal, I felt it was my responsi-bility to empower them. “What would RBG do?” I wondered.

She would pick up her silver pen, don her lace collar, and take action—and so would I, sans the lace collar. After struggling to identify a solution, the other two female editors and I de-cided to host a Women of Journal Night. We would use the event to celebrate all the creative, intelligent, and dedicated women currently on Journal as well as our alumni.

Professor Myrl Duncan, our fearless leader and incredible ally, gathered the names of women who had been on Journal and still lived in the area. The outpouring of support we got from our alumni was unbelievable. Although most of them could not attend, we received numerous messages of support with words of encouragement and advice. As the event drew near, I decided to take this concept one step further. What would RBG do? I would ask her and find out. After hours laboring over just the right words, phrases, and tone, I placed

my 48 cent stamp on the envelope and dropped it in the mail.

The morning before Women of Journal Night, I opened my mailbox to see a small cream-colored envelope with a golden em-bossed seal in the upper left corner. As I reminded my-self to breathe, I read the return address—Supreme Court of the United States. Inside was a 3 by 5 notecard with the inscription: “May you aspire and achieve, recognizing that no insur-mountable impediments will keep you from succeed-

ing. Strive for what you know is right, but do so in a way that will persuade others to join you! –Ruth Bader Ginsburg”

I had written to the character, with few expectations, but it was the woman behind the bench who had responded. She had picked up her silver pen not to strike a blow to regres-sive policies, but to write an inspiring message to a group of women in a land far away. With this one small gesture, she invited us to join her for a moment on the pedestal we had built for her. For that, we are forever grateful. n

Just Ask Ginsburg: The Best 48 Cents I Ever Spent

the diversity corner

Merideth J. Hogan is a third year Washburn Law student. She is currently Comments Editor for the Washburn Law Journal and a Law Clerk at Cavanaugh, Biggs & Lemon, P.A. After graduation, she will work as a Research Attorney for Judge Atcheson at the Kansas Court of Appeals beginning in August 2016.

About the Author

EndnotEs

1. For a great chronicle of Justice Ginsburg’s achievements, read Irin Carmon & Shana Knizhnik, Notorious RBG (2015).

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“Data is a toxic asset. We need to start thinking about it as such, and treat it as we would any other source of toxicity. To do anything else is to risk our security and privacy.”

Bruce Schneier, a renowned security expert and blogger at Schneier on Security, wrote that in his March 6 post entitled Data is a Toxic Asset. The central theme of Schneier’s article is that careless collection and unnecessary retention of data pos-es a credible threat to individual, business, and government security. Financial and reputational danger from data breaches is real, so Schneier proposes a serious discussion about just what data can or should be retained and for how long.

Schneier’s article coincides with a hearing in the Kansas Senate Judiciary Committee on SB424 held on March 8 of this year regarding the proper disposal of data as a toxic as-set. Like any other toxic asset—pesticides, solvents, and anti-freeze, for example—some precautions are in order when it is time to dispose of data.

The Duty to DestroyCurrent law under K.S.A. 50-7a03 already requires that any

person or business must take reasonable steps to destroy a cus-tomer’s records that it no longer intends to retain. There is an affirmative duty to destroy the records “…by shredding, eras-ing or otherwise modifying the personal information in the records to make it unreadable or undecipherable through any means.” (There are similar requirements under federal statutes and regulations as well.)

The thought behind the duty is simple. Just because a per-son or business no longer has use for personal information of its customers does not mean bad guys do not have some ideas about how to misuse it. Data obtained from dumpster diving, searching the drives of give-away or resold computers, and even lease-exchanged photocopiers are valuable to financial scammers hoping to access accounts or create false identities.

Senate Bill 424The attorney general’s concerns targeted in SB424 were that

current law burdens the customer with most of the risk of improper disposal. General Schmidt would like to clarify the duty to dispose so as to make sure the consumer is not the only one with skin in the game. SB424 proposes to do that by:

• Expressly authorizing the attorney general to directly assist potential victims of identity theft;

• Broadening the types of information which a person or business is obligated to destroy; and

• Leveraging the penalties of the Kansas Consumer Protection Act to enforce the duty to destroy.

Broadening the type of information covered by the duty

to destroy is probably the most significant change. Under current law, “personal information” relates back to K.S.A. 50-7a01(g) and means a customer’s first name or initial and last name linked to a social security number, a driver’s license or state ID number, or a financial account number. The attor-ney general argued in testimony that there were at least three specific “document dump” cases where sensitive personal in-formation was exposed by abandonment in an alley but the data did not meet the “personal information” definition. For example, a medical file where I am identified by L.Z. and my address could include my full medical and payment history while skirting the definition of “personal information.”

The new definition attempts to expand that by adding “per-sonal information” to “…any other information which iden-tifies an individual for which an information security obliga-tion is imposed by federal or state statute or regulation.” This definition would expand the duty to destroy to cover records protected by other federal or state law but not covered by K.S.A. 50-7a01(g). Failure to take reasonable steps to destroy such records would open violators to suit by the attorney gen-eral under the Kansas Consumer Protection Act.

Tune in and Stay TunedAs I write this, SB424 has been passed out of the Senate

Judiciary Committee but it is not scheduled elsewhere. It is late in a session with other looming issues promising to con-sume attention so I cannot predict that the bill’s changes will be enacted. Regardless, attorneys must familiarize themselves and their clients with the existing duty to destroy in K.S.A. 50-7a03 because proper disposal of “toxic assets” is an issue of profound importance to the public. As the tally of harm from data breaches and data dumps rises alarmingly, the pub-lic is rightfully restless for more care in how we dispose of our “toxic assets.” n

Data is a Toxic Asset

law practice management tips & tricks

Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee.

[email protected]

About the Author


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Changing PositionsHon. Glenn R. Braun will become Chief Judge of the 23rd Judicial

District for a two-year term, Hays.John B. Gariglietti has joined McDowell Rice Smith & Buchanan

PC as shareholder, Kansas City, Mo.David R. Green has joined Foulston Siefkin, LLP as an associate,

Overland Park.Joshua T. Hill has been promoted to partner at Foulston Siefkin,

LLP, Overland Park.Cheryl Whelan, assistant attorney general, will serve as director of

open government training and compliance.

MiscellaneousRouse Hendricks German May PC has changed to German May

PC, Kansas City, Mo.Ron Smith, a partner in Smith & Burnett, LLC of Larned, Kansas,

has released his first novel, The Wastage. Vance C. Preman has been selected and admitted as a member of

the National Academy of Distinguished Neutrals.

Changing LocationsNicholas B. Bunnell is managing partner for Foley & Mansfield

for new additional office location; 5251 W. 116th Place, Ste. 200, Leawood, KS 66211.

Wesley A. Weathers, Patricia E. Riley and Cynthia J. Sheppeard of Goodell, Stratton, Edmonds & Palmer, LLP have moved to 515 South Kansas Ave. Topeka, KS 66603.

Members in the News

ObituariesHayden B. St. John

Hayden B. St. John, 75, Topeka, Kan., passed away Thurs-day, March 17, 2016, at Midland Hospice House. Mr. St. John founded Lawyers Title of Topeka, Inc. in 1975, together with his father, Harry H. St. John, Jr. and Robert T. Craig, III. At the time of his death, he was Chairman of the Board, and his sons, Christopher St. John and David St. John, serve presently as President and Executive Vice President respective-ly. Mr. St. John was born Dec. 19, 1940, in Topeka, Kansas, the son of Harry H. St. John, Jr. and Helen J. (Bowman) St. John. A lifelong Topekan, he graduated from Topeka High School in 1958, served three years in the U. S. Air Force as a Lieutenant which was followed up by his law school educa-tion from Washburn University School of Law. He received his juris doctorate from Washburn University School of Law in 1970. Mr. St. John has been a member and past chairman of the Title Standards Committee of the Kansas Bar Associa-tion and past president of the Kansas Land Title Association. He served on the board of directors for the Better Business Bureau of Northeast Kansas and on the Board of Directors of the St. Francis Health Foundation. He joined the Washburn

University Foundation Board of Trustees in 2004 and has served on the Audit Committee since he joined. He has also served on the Board of Directors of the Washburn Alumni Association. He was awarded the Outstanding Alumnus of the year for 2001 of the Alpha Delta Fraternity and was its president while in school. He was awarded the Distinguished Service Award from Washburn University on April 22, 2006, and was also awarded a Distinguished Service Award in Au-gust 2012 from the Kansas Land Title Association. Mr. St. John married Susan Stratton on June 19, 1964 in Topeka. She survives. Other survivors include sons, Christopher St. John (Trudy), David St. John (Catherine); sister, Susie St. John-Edds (Greg); and grandchildren, Bailey, Noah and Anah St. John, all of Topeka; niece, Lisa Whitney; and nephew, Jim Stansbury. He was preceded in death by his parents and sister, Sharrie Stansbury. He enjoyed golf, vacations and cruises with family and friends, Washburn University football and basket-ball, and trips to Estes Park, Colo.

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As I get closer to retirement, I watch with interest what other lawyers do when they reach retirement age. Some retire and take up new interests. Some continue

working, whether out of financial necessity or to honor the re-lationships they have built with their clients over many years. A few have found a way to continue to practice law in a new manner. I’d like to introduce you to some of these people.

Tim Owens practiced law in Johnson County, while also serving 32 years in elected office. He served in the Kansas House, then the Senate. In 2014, he left the legislature after an election defeat. He then had to decide what to do next. He says, “helping people has always been the goal of my work. But often I had parallel priorities related to my career development and earning a living. I was in a po-sition where I could focus only on helping people.” Tim had retired his law license when he left the leg-islature. In 2015, he applied and was approved as the first Kansan to practice law under the modified Rule 208. Tim works through Kansas Legal Services (KLS) at the Johnson County Help Center. In that role, he spends two mornings each week at the Johnson County Courthouse. He provides direc-tion to people who come to the Help Center, acting as self repre-sented litigants.

Tim sees a lot of people with family law issues. He spoke about a woman he worked with at the center—she wanted to leave an abusive relationship, but had been given a lot of misinfor-mation, mostly by her spouse. As Tim talked with her about her options to take legal action, protect her children and seek support from a domestic violence program, he saw her relax and know that there was hope for her future. Another memo-rable client was concerned about supporting a child with spe-cial needs when her husband abruptly moved out of state. Tim gave her reassuring options, also.

Tim gets support from KLS in this work. KLS staff screen clients and set appointments. He is able to refer some of these clients for full representation from KLS attorneys. His legal work, as a KLS volunteer, is covered under malpractice insur-ance maintained by KLS. Tim’s work has doubled the num-ber of hours that an attorney is available at the Help Center to 14 hours a week. Tim reports that several other Johnson County attorneys have expressed interest in following his lead and working at the Help Center when they retire.

Nancy Ulrich retired as a staff attorney with the state of Kansas in December 2014. She was interested in a variety of

volunteer opportunities, including helping endangered wild-life and expanding affordable housing. She wasn’t done being an attorney, either. She began coming regularly to the Kan-sas Legal Services Topeka office, where she is now assigned clients to advise or represent in court. She is learning new areas of law and appreciates having colleagues to learn from. Nancy appreciates the helpfulness of all the KLS staff. When she needs clerical support, it is provided by KLS.

One thing that motivates Nancy is that she feels the scales are tipped against those who are temporarily struggling to make ends meet in Kansas. “I think it is better for us as a pro-

fession and for the state, if I do a little bit to even up that balance. Making things better is the way I want to put my skills to use,” she said.

Nancy has represented several mothers of small children in family law matters. She finds each of them wanting to create better circumstanc-es for their children. She has built enjoyable professional relationships with her clients, who are all respon-sive to her and appreciative of her ability to help them. She knows that she has been a part of creating stabili-ty for these clients and their children.

We appreciate the efforts of these and other volunteers who have in-cluded KLS in their “second season of service.” We stand ready to work with other attorneys at whatever point in their career they find them-

selves. If you are interested in finding out more about the Kansas Emeritus Attorney Program, please contact me or the KLS office in your area.

In a few years, when you find me retired and volunteering to work with self represented litigants at my local courthouse, you will know where I got the idea.n

Attorneys Join KLS for a ‘Second Season of Service’

Tim began work at Kansas Legal Services in 2015, following retirement from his practice and the Kansas Legislature.

Marilyn Harp has been the Executive Director of Kansas Legal Services since September, 2006. Prior to becoming Executive Director, she worked in a variety of attorney and management roles with Kansas Legal Services since September, 1979. She is a graduate of the University of Kansas School of Law (May, 1979) and has a BSW from the University of Kansas School of Social Welfare. She has been continuously licensed to practice law in Kansas since 1979.

[email protected]

About the Author

“I have a wealth of experience helping people. I help people here from a legal standpoint. Some of their issues may seem ridiculous to others but to them they are serious.”

— Thomas "Tim" C. Owens, KLS

kansas legal services


A look back at the Journal: June 2008

“Mario’s Miracle” is now forever a part of KU basketball lore. But Mario Chalmer’s trey was hardly the first time KU needed divine inter-

vention in the Final Four. In 1940, KU was in its first NCAA Final Four, and in the semifinal game, KU played Southern Cal, which came into the game as a prohibitive favorite. KU won on a buzzer beater; the person who took and made that shot was named to the NCAA All-Tournament Team. He was also a consensus All-American. His senior year, in addition to everything else he was doing, he was student body president. He is also a Kansas lawyer. You see, before Mario, there was Dan-ny Manning, and before him there was Wilt, and then Clyde Lovellette. But before all of these giants, there was a player who poured the concrete foundation to KU’s basketball legacy. His name is Howard Engleman. And if his name is not familiar to you, all that is about to change.

If Howard Engleman ever wrote his memoirs, book publishers would de-clare it fiction. If Hollywood made it a movie, Blockbuster Video would have to sell it in four sections of their store: “Adventure/Sports/Drama/Military.” The story begins with Engleman play-ing point guard at Ark City, leading his team to the state finals. Phog Allen wanted him, and Engleman obliged. At KU — where his nickname was “Rope,” after his blond, curly locks — he drained the shot to beat USC 43-42. It was considered — at the time — one of the biggest upsets in college basketball history.

The Kansas City Star, on March 24, 1940, blared this head-line: “Howard Engleman’s Shot from the Corner Decides Contest for the Jayhawks.” The news story described that Bobby Allen, son of Phog, “stole the ball and passed to Engle-man alone in the corner. Unhurried and calm, the blond for-ward took his stance and flipped the ball through the hoop with ridiculous ease.”

Engleman was the bright star on a team with some true zeniths. One teammate, Ralph Miller, for instance, went on to coach at Wichita State, Iowa, and Oregon, winning 657 games. Another, Dick Harp, coached KU for seven years.

After graduation, Engleman enlisted in the Navy and during World War II a Japanese kamikaze plane hit his ship in the Pa-cific. He sustained severe burns and recovered in a hospital at Saipan. He then returned stateside to attend KU law school.

While in law school, he held a part-time job. Coaching the KU freshman team! When Phog sustained a concussion and missed several games, Engleman coached the varsity in 1947, adding “Head Coach, KU” to his lengthy CV. And on March

1, 2003, his jersey was officially retired and raised to the raf-ters in Allen Fieldhouse. His speech, delivered at center court, remains a classic: www.kusports.com/multimedia/video/ basketball/02-03/highlights/osu.

And then, upon graduation, he settled in Salina, joined Hampton Royce & Engleman, and did something that nei-ther Mario nor Wilt ever attempted, trying cases. His former law partner, Stan Sexton, offered this observation to his trial

skills, “He’s the most intense, singularly resolute, and prepared trial lawyer I’ve ever known. His background enabled him to almost ‘will’ a result. But noth-ing he did was more amazing than the Chester case.” That would be Mills vs. Smith, 9 Kan. App. 2d 80 (1983).

Chester, you see, was a 100-pound male lion who roughed up a 2-year-old girl. Shockingly, litigation followed, and Engleman defended Chester’s owner.

Judge Parks of the Kansas Court of Appeals described the case this way:

“The male lion, named Chester, was approximately three-and-one-half feet long and weighed 90 to 100 pounds. Gary Clarke, the director of the Topeka zoo, testified at the trial that 9-month-old cubs are very strong and dangerous animals.”

The mother, Althea Mills, “stayed with her two daughters 30 to 50 feet

from the lion while the grandparents took pictures.” When older sister Traci distracted the mom, Darci, the second child, “ran off toward her grandparents [the Buckbees], approach-ing from behind the lion, while Merle Buckbee was taking a photograph of his wife petting Chester.” And this is where it gets interesting. The court’s opinion noted, “Chester reared up on his hind legs, knocked Darci to the ground, grabbed her head in his mouth” and, as Judge Parks described, Chester “began working his jaws.” [Legal speak for a toddler getting up close and personal with Chester’s molars.] The toddler needed stitches but amazingly sustained no major physical injuries.

So add to Engleman’s CV, “defending a lion who tried to swallow a toddler.” O.J. Simpson’s case would be easier. At the end of trial, the jury basically canonized Chester – sticking the toddler’s parents with 50 percent fault and damages awarded of $99. Moral of the story: both on the court, and in it, How-ard Engleman, now retired at age 88, has no peer. n

About the Author

Matthew Keenan has practiced with Shook, Hardy & Bacon since 1985. He may be reached at [email protected].

A NostAlgic touch of humor

Mario Chalmers v. “Rope” Engleman: No ContestBy Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo.

Howard Engleman addressed the crowd at Allen Fieldhouse during ceremonies retir-ing his jersey on March 1, 2003.

8 – JUNE 2008 THE JOURNAL OF THE KANSAS BAR ASSOCIATION

a nostalgic touch of humor


legal writing

Don’t overburden your readers. Tell them everything they need to know and no more. That may seem simple and obvi-ous, but it is very difficult to do. Why? First, it is difficult because you know your case so well. Like any good lawyer, you are intimately familiar with the facts. You have likely met some or all of the parties involved. You have read all the authority, perhaps numerous times, looking for arguments and responses to your opponents’ arguments. Second, it is difficult to put yourself in the position of the readers, who are often significantly less familiar with the material than you are. The result: You tell your readers both less and more than they need.

Whether your reader is a client, another lawyer in your of-fice, opposing counsel, or a judge, he or she does not want to do any more work than necessary. It is your job to do the difficult work of parsing through the material to discern what is important and what is not. Your goal is for your writing to be effortless to read.

To the extent the analysis is difficult or complicated, you want to communicate all the steps in the logic. While this may be obvious when writing to your client, it is also true when your audience is a seasoned lawyer or judge. Although your readers are usually quite capable of understanding so-phisticated analysis, they are busy and, with a judge or oppos-ing counsel, skeptical of what you have to say. If, to under-stand what you are trying to say, they have to jump back to your fact section or go read the case you have cited, you run the risk that they just won’t bother.

Take, for example, this conclusion: The Fieldhouse is, quite simply, the best there is. For some readers of the Kansas Bar Journal, this conclusion may make perfect sense. For others, however, it is entirely lacking in context. Let me try again with a bit more context: Allen Fieldhouse, home to the Uni-versity of Kansas basketball team, is the best college basketball arena.

Again, for some readers, perhaps those who are graduates of KU, this is all you need to hear. Others, perhaps those who graduated from K-State or are fans of a different col-lege basketball team, might be more skeptical readers. Others might be less knowledgeable about the topic: perhaps you are a football fan or are passionate about knitting. Like the skep-tic, you need a bit more information to be convinced of my conclusion. Even for those of you who share my passion for Allen Fieldhouse, you would not mind reading the support for my conclusion. Here’s one: Since February 4, 2007, the KU men’s basketball team has lost only three games in Allen Fieldhouse, winning more than 98 percent of time.1

This fact, however, is just that. Without more information, I haven’t explained how this fact supports my conclusion. I’ve left out steps, sometimes called inferences, in the logic. For example, I’d want to make the argument that such a high win-ning percentage shows that the Fieldhouse provides the KU men’s basketball team with an exceptional home court advan-tage and that this advantage is part of what makes the arena great.

On the other hand, you don’t want to overburden your readers with detail, either in your facts or in your discussion of the law. I find writers often include detail because it is fa-miliar to them and because they believe it could be important. The detail may be important for some part of the case, but if it is not material to the part of the case being discussed in the document, you should omit it. Just because the information could be used to make an argument, don’t include it unless you actually make that argument. Otherwise, you are leaving it to your reader to do your work for you.

If someone is a major character in the story of your case, such as your client, you can require the reader to learn his or her name. Think carefully, however, before burdening your reader with the name of a minor personality. If you are only going to refer to this person or entity once or twice, think about whether you can simply use the character’s role instead: landlord, employer, father, or neighbor. While it might be worth your while to learn that the Fieldhouse court was named after the inventor of basketball and KU’s first men’s basketball coach, James Naismith, you probably don’t need to be burdened by the name of the building’s architect, Charles Marshall.2

Dates are probably the most commonly overused factual detail. Dates are often important only in their relative sense: The contract was signed before the boiler broke. The landlord told the tenant about the leak three days later. The plaintiff and defendant agreed ten years earlier. Avoid making your reader do math: If I tell you the first basketball game was played in Allen Fieldhouse on March 1, 1955,3 you may think it is important to remember it was the 1st of the month and so will focus on that detail. Perhaps I included the date to high-light that part of the appeal of the Fieldhouse is its long and storied history. If that is the case, only the year is important. Better yet, I could do the math and tell you that 61 seasons of basketball have been played in Allen Fieldhouse.

When it comes to the law, legal writers can overburden read-ers by too much “cutting and pasting.” This happens when you take law from cases or other legal authority that “sounds good” and quote it exactly. While there are instances, statu-tory interpretation is one, where you should quote your legal authority exactly, most of the time you should do the difficult work of taking what you find in your sources and adapting to your reader’s needs. Often you are pulling the law from dif-ferent sources, and you need to explain to your reader how the information from each of these sources relate to the others.

In support of my argument that Allen Fieldhouse is the greatest arena, I could provide you with the following quotes: “In the past decade Kansas basketball has—by far—the big-gest home-venue advantage compared to every other team throughout all major American sports.” “Allen Fieldhouse is so distinctive and intimidating because of the beloved vehe-mence and unrelenting passion of the fan base.”4 “During the game, exuberant fans learned that they could literally make the new field house shake by stomping their feet.”5 “Allen Fieldhouse was rocking at a decibel level of almost 122.”6 The

Be The Best There Is—No More, No Less


legal writing

last two quotes in particular seem obviously lacking in con-text, but all should be paraphrased, at least in part, and better connected together to support my argument:

Allen Fieldhouse has provided Kansas basketball the “big-gest home-venue advantage compared to every other team throughout all major American sports.” This advantage stems from the “vehemence and unrelenting passion of the fan base.” By stomping their feet, fans can literally make the Fieldhouse shake, and the crowd noise has reached decibel levels of al-most 122.7

By telling your readers all that they need and no more, you can become, like Allen Fieldhouse, the best there is. n

EndnotEs

1. Matt Norlander, “Experiencing Allen Fieldhouse: A First Time Jour-ney to an All-Time Arena,” CBS SPORTS (February 3, 2016), http://www.cbssports.com/collegebasketball/eye-on-college-basketball/25472006/experiencing-allen-fieldhouse-a-first-time-journey-to-an-all-time-arena (noting the team had a 154-3 record). The KU men’s basketball team has not lost a game in the Fieldhouse since February 3, 2016. I know because I attended all of them.

2. That, of course, is not intended as a slight to Mr. Marshall or his accomplishments in creating a building that supports the echoing Rock Chalk Chant and yet was able to serve as an ROTC armory during the Korean War. Mark D. Hersey, “Field House of Dreams,” KU History, http://kuhistory.com/articles/field-house-of-dreams/ (last visited March 25, 2016).

3. Norlander, supra note 1.

Betsy Brand Six is a native of Lawrence, Kan., and a life-long Jayhawk basketball fan. She is a Clinical Associate Professor and the Director of Academic Resources at the University of Kansas School of Law, which means that her office looks out over Allen Fieldhouse. A graduate of Indiana University (go Hoosiers) and Stanford Law School (go Cardinals), she practiced environmental law in Kansas City for 13 years.

[email protected]

About the Author

• General Provisions• Jurisdiction and Venue• Arrest and Extradition• Search and Seizure• Diversion• Appearance Before

Magistrate• Preliminary Hearings• Com. of Prosecution in District

Court• Proceedings Before Trial• Defenses to Crimes in Kansas• Rights of Defendant, 5th and

6th Amendment• Trials and Incidents Thereto• Competency and Mental State

Defense• Sentencing, Probation and

Expungement• Appeals and Postconviction

Remedies• Forms and Practice Notes• Evidence: Preliminary

Provisions

• Witnesses• Relevance and Extrinsic Policies

Affecting Admissibility

• Hearsay• Opinion Testimony• Judicial Notice• Privileges• Exhibits• Making the Record in

Appellate Court• Prosecution Under the Juvenile

Justice Court• Strategy in Defense of Criminal

Cases• Prosecution of Ciminal Cases• Computer Based Evidence and

Electronically Stored Informa-tion

• Role of the Prosecution in Capital Litigation

• Overview of Defending a Capital Case

The Kansas Criminal Law Handbook is produced through the CLE department of the Kansas Bar Association. All Chapters have been revised since the 4th edition, and a new chapter on computer-based evidence has been added.

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Kansas Criminal Law Handbook



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Excerpt from the Kansas Criminal Law handbook5th Edition, Chapter 26, page 1

The 5th edition was just released.For more information regarding

the book or to order visit www.ksbar.org/bookstore.

§26.1 Scope of ChapterThis chapter provides an overview of the administrative pro-

cess and the criminal prosecution for Driving Under the In-fluence of Alcohol and/or Drugs (DUI) and Criminal Refusal of Testing (Criminal Refusal). Wherever possible, notes con-taining practice tips and areas of legal concern are included. At the end of the chapter is a glossary of abbreviations and terms commonly used by law enforcement and practitioners in the area of DUI and an outline of time deadlines for coun-sel handling these cases. It should be noted that, on December 11, 2015, the United States Supreme Court agreed to address whether a breath or blood test for drunk driving can be made without a warrant and whether, in the case of no warrant, a driver can be charged with a crime of refusing to submit to testing. These issues are contained in three cases, two from North Dakota and one from Minnesota. Clearly, the opinions in those cases could have a significant impact on the criminal aspects of this chapter.

A. LAW OF IMPLIED CONSENT

§26.2 Implied ConsentGenerally, a good portion of the law, both administrative

and criminal, involving charges of DUI and Criminal Refusal revolves around the law of implied consent. This statutory creation has a tremendous impact on issues ranging from the manner in which evidence can be collected, to what evidence

can be admitted at trial. It plays a significant role in both ad-ministrative hearings and criminal prosecutions. As in many areas of the law, the general rule is simple enough to under-stand and apply; the exceptions, however, provide continuing challenges and creative opportunities for practitioners.

Under Kansas law, any person who operates or attempts to operate a vehicle within the State is deemed to have given con-sent, subject to the provisions of the act, to submit to one or more tests (including preliminary screening tests, see K.S.A. 8-1012) of the person’s blood, breath, urine, or other bodi-ly substance to determine the presence of alcohol or drugs. K.S.A. 8-1001(a). All such testing is subject to the provisions contained in the statutes, which provide fertile ground for is-sues dealing with implied consent.

§26.3 Conditions Precedent to TestsBefore a law enforcement officer may lawfully request that

a person submit to a test, he or she must have reasonable grounds to believe that the person (1) was operating or at-tempting to operate a vehicle while under the influence of drugs and/or alcohol, (2) was driving a commercial motor vehicle while having alcohol or drugs in his or her system, or (3) was under 21 years of age while having alcohol and/or drugs in his or her system — and one of the following two circumstances must exist: the person was arrested or was oth-erwise taken into custody for any violation of any state stat-ute, county resolution, or city ordinance, or the person was involved in a motor vehicle accident or collision resulting in

CHAPTER TWENTY-SIXTHE LAW OF DUI



property damage, personal injury, or death. K.S.A. 8-1001(b).In order for these requirements to be fulfilled, however, no

actual arrest needs to have occurred. Rather, probable cause to arrest will suffice. State v. Murry, 271 Kan. 223, 233, 21 P.3d 528 (2001).

To establish reasonable grounds to believe that the person was driving, or attempting to drive, while under the influence, an officer may act upon personal information or collective in-formation available from other officers. K.S.A. 8-1001(b). For example, an officer at the police station may properly act on the reasonable grounds observed by the arresting officer and thus may properly administer tests based upon the informa-tion learned by the arresting officer. Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 758 P.2d 226 (1988). The term “reasonable grounds” is synonymous with the term “probable

cause.” 12 Kan.App.2d at 767. “Reasonable grounds,” howev-er, need not be concomitant with the knowledge necessary to make a lawful arrest. State v. Counseller, 22 Kan.App.2d 155, Syl. ¶2, 912 P.2d 757 (1996). Reasonable grounds “demands consideration of the behavior of the driver before, during, and after he or she is behind the wheel.” Martin v. Kansas Depart-ment of Revenue, 285 Kan. 625, 176 P.3d 938, 944 (2008). Reasonable grounds is the same as probable cause: “Probable cause exists where the facts and circumstances within the ar-resting officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to war-rant a [person] of reasonable caution in the belief that an of-fense has been or is being committed. Sloop v. Kansas Depart-ment of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). n

Esteemed Presenter Lineup:• Michelle Galloway, Cooley LLP, Palo Alto, Cal.• Thomas L. Irving, Finnegan, Henderson, Farabow, Garrett & Dunner,

LLP, Wash. D.C.• Courtenay C. Brinckerhoff, Foley & Lardner LLP, Wash. D.C.• Christopher V. Carani, McAndrews, Held & Malloy, Ltd., Chicago, Ill.• John P. Mulgrew, Shook, Hardy & Bacon LLP, Seattle, Wa.• Mark H. Wittow, K&L Gates LLP, Seattle, Wa.• Jasmine Abdel-khalik, UMKC School of Law, KCMO

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Opinion: Don't Tread on Me

By Nick Badgerow

The Separation of Powers Doctrine and the Need for a Strong Judiciary

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved for publication.


OverviewThe United States Constitution, the

blueprint for the new Government of the United States of America, was a bold experiment, one never attempted before: to form a union of states with disparate interests, and unite them for the common good; identifying and re-serving to the federal government cer-tain national powers, while allotting to the states those powers not necessary to the common, national welfare. The Constitution is an inspired document, drawing on the best of the past, while looking forward and drawing the map to a bright future.

And the Constitution has remained vital because it is a living document, one whose interpretation evolves with the society it governs, and this evolu-tion is its strength. It bends instead of breaking.

The most important aspect of the Constitution is the separation of pow-ers, the establishment of three separate but equal branches, each with checks upon the other two, and balanced by powers vested in the other two. Keep-ing the branches separate in identity, but equal in power, is a necessary ele-ment of the stability of the government which rests upon those branches. And when one branch is made subservient to the other two, the imbalance threatens the very survival of the society which depends on them.

As citizens, each person plays an im-portant role in recognizing the impor-tance of this balance, and in preserving it. Thus, challenges to the indepen-dence of the judicial branch should be foreseen and addressed, to preserve that independence and the equality of the judicial branch with the executive and legislative.

A Bold ExperimentEvery American school student knows

the basic history of our Nation’s birth, as well as the aims and goals which drove the Founding Fathers to the Revolu-tion: they sought independence from the monarchy, along with the right of self-government, a representative (and not a remote) government, and a clear relationship between taxation of the governed and benefits derived from the proceeds of that taxation.

In that connection, and in making the unprecedented step of declaring inde-pendence from the British government, reasons were cited in a public Declara-tion of Independence, as a justification not only to the King and Parliament, but also to the World, to explain the reasons for the step by which the child declared its independence from the par-ent. And the World watched.

And then, after its shocking military success against the World’s greatest army, this fledgling nation had to create a governmental structure out of whole cloth. And the World watched.

A New GovernmentAnd so, under the scrutiny of both

the parent so recently and violently discarded, as well as the rest of the concerned monarchies of the World, America’s founders set about to form a federal government, a combination of states. The founders were concerned about federal power eclipsing the rights and powers of the individual constitu-ent states (which after all had to ratify the thing).

And one thing they knew for sure, they did not want to copy Britain, with a powerful monarch, with its Parliament that served at the pleasure of the King, and a Judiciary which was appointed by, and answerable to the King. This new government would demonstrate its in-dependence by being different.

Men of FaithThe authors of the Constitution were

men of faith, familiar with Scripture and asking a Supreme Being for guid-ance. They were therefore likely familiar with this declaration from the Book of Isaiah:

For the Lord is our Judge, the Lord is our Lawgiver, the Lord is our King; it is He who will save us.1

In this simple recognition can be found the roots of three separate, dif-ferent, but powerful attributes of man’s Maker:

God as Judge – exercising judicial temperance and mercy while interpret-ing the law;

God as Lawgiver – exercising the right and omnipotent power to make the law; and

God as King – exercising executive control to apply and enforce the law.


opinion

Men of LearningThe Founding Fathers also were well learned. Of course,

they were familiar with the writings of John Locke and Baron de Montesquieu. In his Two Treatises of Government, Locke had written that men are naturally free and equal2 (a senti-ment echoed in the Declaration of Independence), and be-cause they are free, the establishment of government is a social contract, by which government is established by the consent of the governed.3

And hence it is evident that absolute monarchy, which by some men is counted for the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil government at all.4

Locke identified the legislative branch as that arm which makes the laws, and the executive branch as that arm which enforces the laws; he made little mention of the judicial branch (“magistrates”). However, Locke strongly warned against al-lowing legislative power to proceed unrestrained.5

The Founding Fathers were also well aware of the writings of Baron de Montesquieu, who had more recently authored The Spirit of Laws.6 In that volume, Montesquieu described the concept of governmental power spread among three equal but differing branches of government, tracing the history of that concept as far back as the Roman Empire after the Caesars.7 Montesquieu recognized and denominated these branches as the Executive, the Legislative, and the Judicial.

The three powers were there distributed in such a man-ner, that the people were the legislature, and the king had the executive, together with the judiciary, power; whereas, in modern monarchies, the prince is invested with the executive and legislative powers, or, at least, with part of the legislative, but does not act in a judi-ciary capacity.

In the government of the kings of the heroic times, the three powers were ill-distributed. Hence those monar-chies could not long subsist.8

Montesquieu, this progenitor of our liberty, because of this lesson of history, emphasized the importance of a separation between these three separate but equal branches, particularly as it relates to the judicial branch:

Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul [sic]; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.9

Further, the power of these three branches must be of rela-tive equality, and separate from each other. Thomas Jefferson later echoed Montesquieu’s point – that each branch must be independent of each other:

Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action.10

Further, James Madison made the same point in his Federalist No. 51:

[T]he great security against a gradual concentration of the several powers in the same [branch] consists in giv-ing to those who administer each [branch] the neces-sary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the [office].11

So, the Founding Fathers were doubtless aware of Locke’s and Montesquieu’s writings about the separate functions of government and the need for independence among those functions. They were also keenly aware of the failings of the parliamentary monarchy under whose thumb they had only so recently suffered and from which they had more recently set themselves free. And, of course, they were aware that the thirteen states and the World were watching.

These representatives of the thirteen former colonies decid-ed to try something bold and different, to create a government based on a document with firm principles, based on lofty as-pirations, and to make the document subject to amendment as times changed – if that amendment were relatively diffi-cult. They wanted to avoid repeating history by imposing a monarchy. And they wanted to avoid civil war or the dissolu-tion of the union. So, as they adopted this bold and unique Constitution, following Montesquieu’s principle of “trias po-litica,” three equal branches covering the separate functions of government, all acting in concert to influence each other through checks and balances, while preserving their own independence.12

Legislative BranchUnder this trias politica, the legislative branch “makes” the

laws, the executive branch “enforces” the laws, and the judicial branch “interprets” the laws.13

Thus, under Article I of the United States Constitution:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.14

Article I then follows with certain enumerated acts permit-ted to the legislature, such as taxation, borrowing, regulating commerce, raising an army and navy, declaring war, etc.15

Similarly, Article Two of the Kansas Constitution first


opinion

provides that “The legislative power of this state shall be vest-ed in a house of representatives and senate,”16 while the re-mainder of the Article details manners and methods for the organization and structure of these bodies.17

Because the legislative branch is directly elected by the people, it is thought that the legislative branch may be more attuned to the people’s will, and more responsive to that will. For this reason, James Madison believed the legislative branch to be the most important of the three.18

Executive BranchArticle II of the federal Constitution creates the executive

branch, but by contrast to Article I, imposes no specific limits upon the executive branch,19 though the President is named Commander in Chief, and is empowered to grant reprieves and pardons and (subject to approval of the Senate) to make appointments and make treaties.20

Under Article One of the Kansas Constitution, “The su-preme executive power of this state shall be vested in a gover-nor, who shall be responsible for the enforcement of the laws of this state.”21

The Kansas Governor is only expressly granted the power to pardon,22 to reorganize government agencies,23 to call for legislative sessions24 to report on the state of the State,25 and to fill vacancies.26 The further powers exercised by the Governor presumably fit within the “supreme executive power” gener-ally ceded to that office.

Judicial BranchArticle III of the federal Constitution vests judicial power

in the Supreme Court and inferior federal courts.27 Federal courts are empowered to hold trials and resolve issues involv-ing the Constitution, federal laws or treaties, or controver-sies between states or citizens of different states.28 There is no mention in the Constitution of the Court’s power to declare statutes unconstitutional, though this power is inherent in the concept of checks and balances.29

Article Three of the Kansas Constitution similarly provides that “The judicial power of this state shall be vested exclu-sively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law.”30

Separation of PowersAgain, while there is no express provision for the separation

of powers in the United States Constitution,31 that separation is clearly implied by the relationship of the three independent branches.

James Madison, writing in the Federalist No. 47, de-fended the work of the Framers against the charge that these three governmental powers were not entirely sepa-rate from one another in the proposed Constitution. He asserted that, while there was some admixture, the Constitution was nonetheless true to Montesquieu’s well known maxim that the legislative, executive, and judicial departments ought to be separate and distinct: The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, there can be no liberty, because

apprehensions may arise lest the same monarch or sen-ate should enact tyrannical laws to execute them in a tyrannical manner.32

The United States Supreme Court has declared unequivo-cally: “At the center of the Framers’ dedication to the separa-tion of powers was individual liberty.”33

Even a cursory examination of the Constitution reveals the influence of Montesquieu’s thesis that checks and balances were the foundation of a structure of govern-ment that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch re-sponsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent, with “[t]he judicial Power . . . extend[ing] to all Cases, in Law and Equity, arising under this Constitution and the Laws of the United States.” Art. III, § 2.34

Similarly, the separation of powers is not expressly stated in the Kansas Constitution. But its principle has long been recognized and upheld in this State. In 1904, our Court held:

[T]he people have set the Constitution over themselves as a limitation upon their own sovereignty, and it is their duty to obey it precisely the same as officials who are given authority under it. By that instrument a gov-ernment has been established, and its powers defined and distributed. Among the powers granted are such as are designated legislative, executive, and judicial. These are sovereign powers, and the people, having delegated them to instruments of their own creation, cannot in-terfere with their exercise. They may meet in their or-ganized political capacity and change the fundamental law, but, so long as the Constitution stands, they can-not legislate or execute laws or adjudicate controversies. The recognition of any other doctrine would sound the death-knell of constitutional government.35

Thus, the importance of the doctrine cannot be understat-ed. It is essential to the functioning of government.36 “[I]t re-mains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another.”37

The doctrine of separation of powers is an inherent and integral element of the republican form of government. By dividing the government into three branches, each of which is given the powers and functions appropriate to it, a dangerous concentration of power is avoided and the respective powers are assigned to the branch best fit-ted to exercise them. This doctrine prevents one branch of government from usurping another branch's pow-ers. Usurpation occurs when one branch of government significantly interferes with the operations of another branch.38


opinion

Checks and Balances Have EvolvedUnder the concept of checks and balances, each branch

holds sway over the others, and each, in turn, is subject to controls by the other two.39

The executive branch is subject to having its veto overruled by the legislative, and is subject to a Supreme Court’s declara-tion that executive action is unconstitutional.40 The legislative branch is subject to having its actions vetoed by the presi-dent, and its laws declared unconstitutional by the judicial branch.41 And executive appointment of the members of the judicial branch is subject to the approval of the Senate, while the President makes those appointments, and also has the power to pardon, despite a court’s sentence.42

Under this method of government, the judicial branch must not only be equal in power to the other two, it must be so perceived. A vital court, with the power to check unrestrained actions by the legislative and the executive branches is essen-tial to the function of a free state. Power and control cannot run just one way.

Under the federal system, justices and judges serve for life. The number of justices on the Supreme Court is set by Con-gress, and that too has changed over time. In 1789, the first Judiciary Act set the number of justices at six.43 The number was decreased to five in 180144 for just one year, when it was returned to six in 1802.45 The number was increased to eight justices in 1837.46 Finally, the Judiciary Act of 186947 fixed the number of Justices at nine and no subsequent change to the number of justices has occurred since then.

The Court-Packing PlanHowever, there have been efforts to change the number of

justices on the Supreme Court since 1869. President Frank-lin Delano Roosevelt saw a number of his “New Deal” laws declared unconstitutional by the conservative Supreme Court in 1935 and 1936. Indeed, in those two years, the Supreme Court struck down eight of FDR’s New Deal programs, in-cluding the National Recovery Act (NRA) and the Agricul-tural Adjustment Act (AAA).48 Concluding that his landslide re-election in 1936 was a public mandate for his New Deal programs,49 Roosevelt introduced a plan50 for the mandatory retirement of each Supreme Court justice reaching the age of 70, with a new justice to be appointed to serve alongside him if the Justice refused to retire.51

Three weeks after introduction of this bill, Justice Owen Roberts changed sides and upheld the constitutionality of sev-eral New Deal laws, including the Wagner Labor Relations Act and the Social Security Act,52 thus signaling an end to the Court’s opposition to the New Deal. The court-packing bill thereafter failed, and an amended Judicial Procedures Reform Act of 1937, without the court-packing provision, passed.53

The Judiciary Must Stay IndependentIn order for checks and balances to work, each branch must

be equally strong; none must have precedence or power over the other. As Alexander Hamilton observed in urging the adoption of the Constitution, there is a need for “a steady, up-right, and impartial administration of the laws by a judiciary of firmness and independence. . . . Liberty would have every-thing to fear from [the judiciary’s] union with the legislature or the executive.”54

This was one of the fundamental concepts which led to the Revolution. The Declaration of Independence excoriated King George III for, among other things, making colonial “judges dependent on his will alone, for the tenure of their offices and the amount and payment of their salaries.” Such dependence naturally would motivate a judge to look to the King’s wishes and will in making decisions, and to expect to receive an expression of the King’s dissatisfaction after deci-sions unsatisfactory to the King.

Thus, the Constitution vests the judicial power of the United States in federal judges, who “shall hold their offices during good behaviour and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office,”55 thus insuring judges’ in-dependence from the will and wishes of the executive or the legislative branches.

This independence is tempered by the principle of checks and balances. The Constitution can be amended, statutes can be re-written, and new judicial appointments can be made as vacancies occur. But the bedrock foundation of judicial inde-pendence should not be eroded.

The Risk of Partisan PoliticsIf American political history teaches anything, it is the con-

cept that a faction currently in control will wane, and a dif-ferent faction will follow, and the more radical the first, the equally radical will be the second. It is a beauty of this system, and the foreseeability of the inevitability of this change, which does or should restrain those currently in power from over-stepping or creating standards and rules which will then be applied to that first group when it falls from power.56 Thus, those in power should be circumspect in imposing draconian actions on the minority, when those in power will likely find themselves in the minority in the not-too-distant future.

One universally accepted method for avoiding this phe-nomenon, at least in the appointment of judges and for pre-serving judicial independence, is the “Missouri Plan.”

The Missouri PlanThe “Missouri Nonpartisan Court Plan,” also called “The

Missouri Plan,” was first adopted in Missouri in response to the Pendergast Era in that state, when court appointments, like other governmental appointments, were doled out as po-litical patronage, rather than on merit.

After the turn of the last century, political machines rose to power in Kansas City and St. Louis. These political machines used their power over the elector-ate to influence who was nominated to be a judge, who was elected to be a judge, and who remained a judge. Because Kansas City and St. Louis had much of the population of the state, the influence of these political machines could reach all levels of judg-es in Missouri, including the Supreme Court. . . . . . . Allegiance to party bosses in Kansas City was criti-cal to being nominated and selected to be a judge. In 1936, the Pendergast and Shannon factions of the Jackson County Democratic Party fought a bitter intra-party battle before the public during the primary for a


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state Supreme Court Judge. Two years later, the factions joined together, again for the public to see, to try to unseat a Supreme Court Judge who was said not to have voted Pendergast’s way in a case before the court. The meaning of these political battles over judgeships was not lost upon the citizens of Missouri, especially law-yers. People saw that political allegiance was trumping judicial qualifications in the selection of judges.57

Thus, once Pendergast was no longer in total control of state and local politics, Missouri’s citizens acted to adopt a plan which removed the selection of judges from political influ-ences, and based their selection and retention more on merit. The result was the Missouri Plan.58 In November 1940, Mis-souri voters amended the Missouri constitution by adopting the “Nonpartisan Selection of Judges Court Plan,” which was placed on the ballot by initiative petition, passed, and thus became a part of the Constitution.59 Under the Missouri Nonpartisan Court Plan, a nonpartisan judicial commission, comprised of lawyers and non-lawyers, reviews applications, interviews candidates and selects a judicial panel. With any vacancy, the appropriate commission reviews applications of lawyers who wish to join the court and interviews the appli-cants. It then submits the names of three qualified candidates – called the “panel” of candidates – to the Missouri governor.

Normally, the governor will interview the three candi-dates and review their backgrounds before selecting one for the vacancy. If the governor does not appoint one of the three panelists within 60 days of submission, the commission selects one of the three panelists to fill the vacancy.60

Once a judge has served for at least a year, the judge’s name is placed on a ballot for voter determination whether the judge should be retained. Voters are provided information via a judicial performance evaluation report, compiled by a com-mittee of lawyers and non-lawyers based on objective criteria including decisions written by judges on the retention ballot as well as surveys completed by lawyers and jurors who have direct and personal knowledge of the judges.61 Thus, in states following the Missouri Plan, judges are not elected in partisan elections, and they are retained or rejected in office through non-partisan votes based on merit. And the Plan has worked for Missouri.

Missourians learned long ago, before they adopted the nonpartisan plan, what can and does happen when pol-itics becomes a key factor in determining who will be a judge. That is why they adopted the Missouri Nonpar-tisan Court Plan -- the least-political method for select-ing judges. They adopted the nonpartisan plan because they sought to minimize - not maximize – politics in judicial selection. They also wanted stability in the ju-dicial system. Businesses, families and all Missourians depend on justice being even, fair, just, deliberate and consistent, no matter who holds the other offices in the state.62

The majority of the other states have selected the Missouri

Plan as their prescribed method of selecting and retaining judges.

The Nonpartisan Selection of Judges Court Plan, which has come to be known as the Missouri Plan, has served as a model for the thirty-four other states that use merit selection to fill some or all judicial vacancies.63

History since 1940 has proven the validity of a judicial-selection system removed from politics.

The principal argument made by proponents of “merit” selection, regardless of the particulars of the given plan being discussed, is that it removes politics from the pro-cess of selecting judges. Almost always accompanying this argument is the correlative argument that, because politics is removed from the selection process, the re-sult is selection of “better” judges. Proponents also fre-quently claim that more women and minorities reach the bench under “merit” selection systems than under systems based upon contested elections and that, there-fore, the result in states using some form of “merit” sys-tem is a more diverse judiciary.64

Thus, judges under the Missouri Plan do not run or cam-paign for election or for re-election. This removes judges from the obligation to raise funds (with the favors inherent in that function), to take a public stand on controversial issues, or to make campaign promises about outcomes, decisions or results in cases which might come before the judge if elected to the bench.65 Further, being aloof from such activities, specific ex-pectations on the part of the electorate are avoided.

Kansas and the Missouri Plan

Supreme Court JusticesFor the selection of Supreme Court Justices, Kansas has ad-

opted the Missouri Plan by Constitution,66 as a result of simi-lar political shenanigans to those encountered in Missouri.67 Thus, this method of selecting Supreme Court Justices can only be changed by amending the Constitution.

Court of Appeals Judges The selection of Court of Appeals judges followed the Mis-

souri Plan from the time of the Court’s creation in 1975, until 2013, by statute.68 That statute was amended, and since July 1, 2013, appointments to the Court of Appeals are made by the governor, subject to confirmation by a majority vote of the Senate.69 Thus, the Missouri Plan no longer applies to ap-pointment of Court of Appeals judges.

District JudgesThe selection of district court judges is left to the decision of

each district. The Kansas Constitution provides:

The district judges shall be elected by the electors of the respective judicial districts unless the electors of a judi-cial district have adopted and not subsequently rejected a method of nonpartisan selection. The legislature shall provide a method of nonpartisan selection of district judges and for the manner of submission and resub-mission thereof to the electors of a judicial district. A


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nonpartisan method of selection of district judges may be adopted, and once adopted may be rejected, only by a majority of electors of a judicial district voting on the question at an election in which the proposition is submitted.70

Some fourteen districts elect their judges by partisan elec-tion,71 while the seventeen others rely on non-partisan selec-tion after nomination by a commission.72

ConclusionThe Missouri Plan insulates judges from the vicissitudes of

political wrangling, and insures their independence. While a faction in power may be tempted to wrest this selection meth-od from a qualified commission, and place the entire power with the governor, that faction may not always be in power, and may later come to regret having made so significant a change. Montesquieu’s concept of judicial independence, and Madison’s idea of three equal branches of government would be eroded if selection of judges is removed from a nonpartisan process.

The separation of powers requires nothing less among the co-equal participants in the tripartite form of gov-ernment adopted federally and in Kansas. Though ju-dicial restraint in addressing executive actions may be less frequently discussed and less often at hand than the interplay between courts and legislative bodies, it is a doctrine of long standing and demands scrupulous adherence.73

Ask whether citizens want their judicial candidates to solicit political contributions, publicly to debate matters which may come before them, or to make promises of future decisions to curry favor with voters now.

The United States Constitution and the Kansas Constitu-tion are vital, living documents, clearly providing for three equal branches of government, with checks and balances from and to each branch. The Judicial Branch must remain a strong and equal branch, equal to the other two, or imbalance –or worse – is likely to arise. n

J. Nick Badgerow is a partner with Spencer Fane Britt & Browne LLP in Overland Park, and is a trial lawyer practicing mainly in the areas of construction, employment, and professional responsibility. He is a member of the Kansas Judicial Council, and Chair of the Judicial Council’s Civil Code Committee; member of the Kansas State Board of Discipline for Attorneys; Chair of the KBA Ethics Advisory Opinion Committee; and Chair of the Johnson County (Kansas) Ethics & Grievance Committee. Nick was Chairman of the Kansas Ethics 2000 Commission and the Kansas Ethics 20/20 Commission, and he was the editor and a co-author of the KBA’s Ethics Handbook (Third Edition).

[email protected]

About the Author

EndnotEs

1 Isaiah 33:22, King James Bible.2 John Locke, Two Treatises of Government (1689), available online at

http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/locke/government.pdf , at 46 (“man has a natural freedom; all . . . are in nature equal”)

3 Id., at 62 (government must be created “for the benefit of the gov-erned, and not the sole advantage of the governors.”)

4 Id. at 143.5 Id., at 164 (warning that by giving up “to the absolute arbitrary power

and will of a legislator, [citizens] have disarmed themselves, and armed him to make a prey of them when he pleases”).

6 Charles Louis de Secondat, Baron de Montesquieu, The Spirit of Laws (1748), available online at http://oll.libertyfund.org/titles/837.

7 Id., Book 10, Chapters 16, 17 and 18, and Book 16, Chapter 12.8 Id., Book 11, Chapter 11.9 Id., Book 11, Chapter 6 (“the judiciary power ought not to be united

with any part of the legislative”).10 Thomas Jefferson to Spencer Roane, Works 12:135—38 (Sept. 6,

1819); available online at http://press-pubs.uchicago.edu/founders/docu-ments/a1_8_18s16.html.

11 James Madison, Federalist Papers, No. 51 (February 6, 1788), avail-able on line at http://www.constitution.org/fed/federa51.htm

12 Legal Dictionary, “Separation of Powers,” available online at http://legal-dictionary.thefreedictionary.com/Trias+politica

13 U.S. Const. art. I, II & III; Kan. Const., art. I, II & III.14 U.S. Const. art. I, § 1.15 Id., art. I, § 8.16 Kan. Const. art. II, § 1.17 Id., art. II, §§ 2–30.18 Federalist Papers, No. 51, supra note II.19 U.S. Const. art II, 1 (“The executive Power shall be vested in a Presi-

dent of the United States of America”).20 Id., art. II, § 2.21 Kan. Const. art 1, § 3.

22 Id., art. 1, § 7.23 Id., art. I, § 6.24 Id., art. I, § 5.25 Id.26 Id., art. I, § 11.27 U.S. Const. art. III, § 1 (“The judicial Power of the United States,

shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”).

28 Id., art III, § 2.29 Marbury v. Madison, 5 U.S. 137 (1803); College of American Gov-

ernment, Checks and Balances: Internal Constraints on Government Power, available online at http://collegeamericangovernment.org/checks-and-balances-internal-constraints.html. See also, Lathrop v. Donohue, 367 U.S. 820, 855, 81 S. Ct. 1826, 6 L. Ed. 2d 1191 (1961)

30 Kan. Const. art. III, §131 Principality of Monaco v. Mississippi, 292 U.S. 313, 323 (1934),

Hughes, J. (“The doctrine of separation of powers is fundamental in our system. It arises, however, not from Art. III, nor any other single provision of the Constitution, but because ‘behind the words of the constitutional provisions are postulates which limit and control’”).

32 Buckley v. Valeo, 424 U.S. 1, 120, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)(footnote omitted).

33 Department of Transportation v. Association of American Railroads, __ U.S. __, 135 S. Ct. 1225, 191 L. Ed. 2d 153 (2015).

34 Bowsher v. Synar, 478 U.S. 714, 722, 106 S. Ct. 3181, 92 L. Ed. 2d 583 (1986).

35 State v. Durein, 70 Kan. 1, 78 P. 152, rehearing, 70 Kan. 13, 80 P. 987 (1904), aff’d 208 U.S. 613, 52 L. Ed. 645, 28 S. Ct. 567 (1908).

36 Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973)(“the doctrine of separation of powers is an inherent and integral element of the republican form of government”).

37 Loving v. U.S., 517 U.S. 748, 757, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996), citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225-26 (1995).


opinion

38 Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098, Syl. ¶9 (2012).39 Montesquieu, Spirit of the Laws, bk. XI, ch. 6, at 150, 157 (“power

should be a check to power” lest the legislature “arrogate to itself what authority it pleased . . . [and] soon destroy all the other powers”).

40 Aptheker v. Secretary of State, 378 U.S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992, Syl. ¶ 1 (1964)(Executive order ruled “unconstitutional on its face, for it too broadly and indiscriminately transgresses the liberty guar-anteed by the Fifth Amendment”).

41 Marbury v. Madison, 5 U.S. 137 (1803). An extensive and historic exegesis on the power of courts to declare legislation to be unconstitutional is found in Atkinson v. Woodman, 68 Kan. 71, 74 P. 640 (1903). See also, State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 337-38, 955 P.2d 1136 (1998). (“Courts are limited to the exercise of judicial power in interpreting and applying the law and may not usurp the legislative power of determining policy matters or the executive power of implementing such policy”).

42 National Constitution Center, Article I, Legislative Branch, available online at http://constitutioncenter.org/constitution/the-articles/article-i-the-legislative-branch.

43 The United States Judiciary Act of 1789, ch. 20, 1 Stat. 73 (1789).44 Judiciary Act of 1801, 2 Stat. 89 (1801).45 Judiciary Act of 1802, 2 Stat. 132 (1802).46 Judiciary Act of 1837, 5 Stat. 176 (1837).47 Judiciary Act of 1869, 16 Stat. 44 (1869).48 Railroad Ret. Bd. v. Alton R. Co., 295 U.S. 330 (1935); Humphrey’s

Executor v. United States, 295 U.S. 602 (1935); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 (1936); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Carter v. Cart-er Coal Co., 298 U.S. 238 (1936); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); Ashton v. Cameron County Water Improvement Dist. No. 1, 298 U.S. 513 (1936).

49 Franklin Delano Roosevelt, Fireside Chat on Reorganization of the Judiciary (March 9, 1937), available online at http://www.mhric.org/fdr/chat9.html.

50 Judicial Procedures Reform Bill of 1937.51 This Day in History, February 5, 1937, Roosevelt Announces “Court

Packing” Plan, available online at http://www.history.com/this-day-in-his-tory/roosevelt-announces-court-packing-plan.

52 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

53 Judicial Procedures Reform Act of 1937.54 Alexander Hamilton, The Federalist Papers, No 78.55 U.S. Const. art. II, §1.56 See, e.g., United States Senate, Filibuster and Cloture, available on-

line at http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm.

57 The Missouri Bar, A Short History of How Missouri Has Chosen Its

Judges, Including the Missouri Plan, available online at http://www.mobar.org/nonpartisancourtplan/the-missouri-plan.htm

58 Id.59 Mo. Const. art. V, § 25(a).60 Missouri Courts, Missouri Non-Partisan Court Plan, available online

at https://www.courts.mo.gov/page.jsp?id=297.61 Id.62 Hon. Laura Denvir Stith and Jeremy Root, The Missouri Nonpartisan

Court Plan: The Least Political Method of Selecting High Quality Judges, 74 Mis-souri Law Rev. No. 3, 711, at 725 (2009), available on line at http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3841&context=mlr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmissouri%2520constitution%2520non-partisan%2520judge%2520selection%26source%3Dweb%26cd%3D6%26ved%3D0CEAQFjAFahUKEwjWx7L7lpDHAhUJgJIKHQnzAqU%26url%3Dhttp%253A%252F%252Fscholarship.law.missouri.edu%252Fcgi%252Fviewc ontent.cgi%253Farticle%253D3841%2526context%253Dmlr%26ei%3DyRTBVZa_EomAygSJ5ouoCg%26usg%3DAFQjCNFuA0fduDPM_7kzcDocUdBL5s0lAg%26bvm%3Dbv.99261572%2Cd.aWw#search=%22missouri%20constitution%20non-parti-san%20judge%20selection%22.

63 National Center for State Courts, Judicial Selection in the States, available online at http://www.judicialselection.us/judicial_selection/in-dex.cfm?state=MO.

64 Peter D. Webster, Selection and Retention of Judges: Is There One “Best” Way?, Fla. St. U. L. Rev. (1995), available online at http://archive.law.fsu.edu/journals/lawreview/issues/231/webster.html#heading8.

65 Stade L. Sanders, Kissing Babies, Shaking Hands, and Campaign Con-tributions: Is This The Proper Role for the Kansas Judiciary?, 34 Washburn L.J. 573, 577-78 (1995).

66 Kan. Const. art. III, §5.67 R. Alton Lee, The Triple Switch: How the Missouri Plan Came to

Kansas, J. Kan. Bar Ass'n, (January 2004), available online at http://www.washburn.edu/reference/cks/politics/pdf/triple.switch.pdf.

68 K.S.A. 20-3007 – 20-3010 (1975).69 K.S.A. 20-3020 (2013).70 Kan. Const. art. III, §6.71 13th District, 14th District, 15th District, 16th District, 17th Dis-

trict, 18th District, 19th District, 20th District, 22nd District, 23rd Dis-trict, 24th District, 26th District, 27th District, 29th District. Source, Ballotpedia, available online at http://ballotpedia.org/Judicial_selection_in_Kansas.

72 1st District , 2nd District, 3rd District, 4th District, 5th District, 6th District, 7th District, 8th District , 9th District, 10th District, 11th District, 12th District, 21st District, 25th District, 28th District ,30th District. Source, Ballotpedia, supra.

73 Theisman v. City of Overland Park, 253 P.3d 798, 2011 WL 2637452, at *8 (Kan. App. 2011).

Opinion

By Lumen Mulligan*

I. Introduction

Separation of powers and the judiciary—or judicial inde-pendence, as it is often termed—“refers to the need for courts that are fair and impartial when reviewing cases

and rendering decisions, . . . [which] requires freedom from outside influence or political intimidation.”1 As recognized by President Ronald Reagan, and scores upon scores of our na-tion’s most preeminent leaders, “’[t]he independence of the courts from improper political influence is a sacred principle,. . . . It must always be guarded.’”2

This cornerstone of our free society—judicial indepen-dence—has been the bedrock of Kansas’ republican form of government since the state’s founding.3 Indeed, separation of powers is one of the most important political principles upon which our entire nation was founded. As Thomas Paine ob-

served: “No country can be called free which is governed by an absolute power; and it matters not whether it be an abso-lute royal power or an absolute legislative power, as the conse-quences will be the same to the people.”4 George Washington forcefully advocated this same commitment to separation of powers in his famous Farewell Address. “Liberty itself will find in such a Government, with powers properly distributed and adjusted, its surest Guardian.”5

President Reagan, Thomas Paine, and President Washing-ton’s message to us today is clear. The independence of the judiciary is not maintained for the benefit of the judges. It is for us—free citizens of a democratic republic governed under rule of law— for whom the courts stand open as fair and im-partial tribunals.

Testimony Concerning the Separation of Powers and the Judiciary

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved for publication.


opinion

II. The Vast Majority of the Time the Kansas Courts Act as Essential Implementers of Legislative Policy

To some, it may appear that over the past few years the Kansas courts and the Legislature are at odds on every issue. From this erroneous perspective, judicial independence could be misunderstood to mean that a judge is free to do as he or she sees fit in any situation. Nothing could be further from the truth, however. Indeed, the overwhelming bulk of the dis-putes resolved by our Kansas courts never reach the headlines, which distorts a true understanding of what our courts do. Some perspective, therefore, on the workload of our Kansas courts is helpful.

Kansas judges handled approximately 1,600 cases per judge in FY2015.6 Or to look at it another way, there were about 392,000 judicial cases filed in FY2015 across the state of Kan-sas.7 Nearly 42 percent of these suits were traffic violations. Just about another 25 percent of cases filed in FY2015 were Chapter 61 Limited Actions, which are small-claims-court disputes. Another 10 percent were run-of-the-mill family-law matters such as divorces, alimony, child custody, etc. Non- traffic-related criminal cases—convictions and sentencing of crimes running the gamut from misdemeanor property crimes to felonies such as rape—comprise an additional 9 percent of the Kansas courts’ caseload. Yet another 9 percent of the case-load from last year fell within lesser jurisdictions, such as mu-nicipal courts and the like; these are typically city- ordinance-violation complaints (noise violations and that type of thing). Finally, approximately 4 percent of cases filed in FY2015 were “civil” matters such as breach of contract suits, property claims and the like. Of course, each of these suits are of great importance to the parties involved; but of the approximately 392,000 cases filed last year, less than a handful of those suits made any ripples in the state-wide headlines.

This lack of newsworthiness is not surprising given that, in the vast majority of these 392,000 cases, the primary legal task for Kansas courts is to interpret statutory language. That is to say, in the overwhelming set of Kansas cases, the job for our Kansas courts is to apply the Kansas Legislature’s directives as set out by statute. Indeed, when faced with this task, the Kan-sas courts universally hold that “[t]he most fundamental rule of statutory construction, is that the intent of the legislature governs.”8 What this means is that when acting within consti-tutional bounds, the Kansas courts have always acknowledged that the Kansas Legislature reigns supreme in the making of Kansas law.9

Nevertheless, the independence of the judiciary remains crucial in these hundreds of thousands of run-of-the-mill cas-es. If citizens fear that the outcome of, say, their disputes over ownership of 300 acres of prime farm land hinges upon who has more political pull in the county or the state, then citizens will seek other, possibly more violent, avenues than the courts to solve their differences. Simply put, our free and democratic society would crumble, if these 392,000 annual disputes were not peacefully and orderly resolved under law.

The peaceful and orderly administration of this multitude of conflicts demands a system of dispute resolution that is fair, impartial, and just and that is perceived to be so by the citi-zenry. This is the case because every citizen who has his or her

day in court must feel fairly treated---win or lose. Only courts that are insulated from outside intimidation and pressure can fairly administer justice and be perceived to be doing so by our fellow Kansans. As such, our family lives, our commercial transactions, our physical safety and our ability to pursue hap-piness is deeply rooted in the existence of independent courts. It is no surprise, then, that the leading economic studies find a strong causal link between economic growth and the existence of an independent judiciary that stands ready to resolve these many and various quarrels of our everyday per-sonal and professional lives.10 Any attack upon the institution of independent courts sacrifices all these benefits.

III. Our History, Tradition and Law Compel the Conclusion that an Independent Judiciary Must Be Able to Strike Statutes in Order to Protect Constitutional Rights

In highlighting the Kansas courts’ role in fairly deciding these thousands upon thousands of everyday statutory dis-putes, I do not mean to sweep the very small number of high-profile constitutional cases, in which the Kansas courts have struck down acts of the Kansas Legislature, under the rug. Quite to the contrary. As Chief Justice William Rehnquist, appointed to that post by President Reagan, recognized: “[An independent judiciary with the authority to declare laws passed by . . . [the legislature] unconstitutional . . . . is one of the crown jewels of our system of government today.”11 In the throes of our fights here in Kansas concerning great is-sues of the day, one might question Chief Justice Rehnquist’s view that judicial independence remains a crown jewel of our system of government. Reflecting upon our history, however, helps us understand the continuing importance, today, of the ability of an independent judiciary to find acts of the legisla-ture unconstitutional.

Of all the evils listed in the Declaration of Independence, none was worse than the colonial judges’ complete depen-dence upon the king. As Thomas Jefferson penned, “[King George III] has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary pow-ers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”12 Although judges in England had life tenure protec-tions and other hallmarks of judicial independence since at least 1700, colonial judges were under the direct political and financial thumb of the king. It is no surprise, then, that these judges ruled against the American colonists and in favor of the king and his agents in case after case.

Having experienced life under a system where judges bowed to political pressure, instead of standing up for the rights of the people under law, the founders were determined not to re-peat that mistake. As such, James Madison stressed the impor-tance of separation of powers. “An elective despotism was not the government we fought for; but one . . . in which the pow-ers of government should be so divided and balanced among the several bodies of magistracy, as that no one could tran-scend their legal limits, without being effectually checked and restrained by the others.”13 Alexander Hamilton highlighted that in our constitutional republic “the legislative authority [is limited by the Constitution and that] . . . . [l]imitations of this kind can be preserved in practice no other way than


opinion

through the . . . courts . . ., whose duty it must be to declare all acts contrary to . . . the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”14 Our Founders knew that our freedoms would only be protected by courts. Courts standing ready to strike unconstitutional acts. Entrusting courts with this power was an intended and foundational part of our form of government.

Indeed, this commitment to separation of powers and ju-dicial independence was the guiding light of the early years of the American republic. Upon leaving office, President Washington reminded the nation to guard against the “love of power and [its] proneness to abuse [when] it . . . predomi-nates in the human heart” and warned all of the citizens of the “necessity of reciprocal checks of political power, by dividing and distributing it into different depositories and constituting each the guardian . . . against invasions by the others.” “To preserve,” this system of checks and balances, our first presi-dent concluded, “must be as necessary as to institute them.”15

We see again the founding generation’s commitment to judicial independence, and specifically a commitment to the courts’ duty to strike unconstitutional legislation, in the cele-brated case of Marbury v. Madison.16 In that case Chief Justice John Marshall found the written nature of our constitution key. There would be no point of having a written Constitu-tion, he concluded, if the courts could just ignore it. “To what purpose are powers limited, and to what purpose is that limi-tation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”17 He went on to reason:

It is emphatically the province and duty of the Judicial Department to say what the law is. . . . So, if a [statute] be in opposition to the Constitution . . . so that the Court must either decide that case conformably to the [statute], disregarding the Constitution, or conform-ably to the Constitution, disregarding the [statute], the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. . . . [In such cases, because the] Constitution is superior to any ordinary act of the Legislature, the Con-stitution, and not such ordinary act, must govern the case to which they both apply. . . . [To decide other-wise] would subvert the very foundation of all written constitutions.18

All this is to say, the very point of having a written constitu-tion, as we do in Kansas and at the federal level, is to create a duty in the judiciary to strike legislative and executive ac-tion that contradicts the terms of the written constitution. A written Constitution, moreover, that was established by the people. Judicial independence and the power to find legisla-tion unconstitutional, then, was not designed for the aggran-dizement of the judges but for the protection of the people’s rights.

IV. Our Recent History Shows Just How Essential this Power to Strike Unconstitutional Legislation is Today

Our recent history shows, once again, that the founders were right. We cannot rely solely upon the legislative or ex-ecutive branches to protect our rights. Consider these recent examples where we — the People — needed an independent judiciary to strike down legislative acts and executive action to protect our rights:

• In 2001, the District of Columbia’s legislature passed an act, which was overwhelmingly popular among the voters in the District, banning all handguns.19 Despite the popularity of this act among D.C. voters, and the passage of it by the D.C. legislature, the independent courts were there to exercise their duty of reviewing the law to ensure it comported with the Second Amend-ment. And this is precisely what the courts did, striking this D.C. statute as a violation of the people’s right to bear arms.20

• In 2005 under the Governor Sebelius administration, officials attempted to condemn property as abandoned without first ensuring that all the creditors of the pri-or owner of the property were paid. Our independent Kansas judiciary was there to protect the creditor and find the administration’s conduct an unconstitutional violation of the people’s right to due process of law.21

• Similarly, the Governor Sebelius administration at-tempted retroactively to apply the 2003 amendments to K.S.A. 79–213(k) to a taxpayer and thus take back a tax refund already given. Again our independent Kansas courts stood ready to rule that such conduct deprived the taxpayer, and thus all of the people, of property in violation of the United States and Kansas constitu-tions.22

• In 2008, relying upon the Bipartisan Campaign Re-form Act of 2002’s changes to the Federal Election Campaign Act, the federal government attempted to suppress the release of a documentary critical of then-Senator Hillary Clinton. Despite the fact that the fed-eral statute in question enjoyed both Republican- and Democratic-party support, the independent courts struck down the act as a violation of the people’s right to freedom of speech.23

• Just two years ago, President Obama sought to ap-point a person to the National Labor Relations Board without Senate approval. Once again the independent courts were there to strike this action as violation of the separation of powers that protects the liberty of the people.24

• The Affordable Care Act, as passed by Congress and signed by President Obama, mandated that business-es controlled tightly within a family must offer birth control coverage to all their employees — even when such coverage runs contrary to the deeply held religious beliefs of the business owners. The independent courts


opinion

were there to strike that portion of the statute so as to protect the people’s right to religious freedom.25

As these cases, and many more that I could list for you, demonstrate, we need an independent judiciary in our state now as much as we ever have. Even if some believe the inde-pendence of the courts a barrier to the enactment of wise laws at this current moment, can these same people be sure that the next state or federal administration will not act beyond the bounds of the Constitution? None of us knows who the next governor or president will be. History teaches us that we will need our independent courts down the road. Indeed, our legislature could well turn to our independent courts soon to resolve disputes over the executive’s authority to enter into lease-purchase agreements involving key state buildings. 26

Now is time to embrace our traditional reliance upon an independent judiciary— not the time to reject it. As Chief Justice Marshall put the principle: "The Government of the United States has been emphatically termed a government of laws, and not of men.”27 Similarly, our Kansas supreme court in the first decade of our existence as a state held that attack-ing an independent judiciary “is subversive of the constitu-tion, which has carefully kept separate the executive, legisla-tive, and judicial departments of the government, ‘to the end that this may be a government of laws, and not of men.’”28 Our Kansas Supreme Court as early as 1894 further recog-nized that “[n]othing is more firmly fixed in the governmental systems of all English-speaking countries than the division of powers between the three great departments of government—the executive, legislative, and judicial.”29

Indeed, if it were not for the independent courts, all our cherished constitutional freedoms would be put at risk. As recounted by Chief Justice John Roberts, “President Ronald Reagan used to speak of the Soviet constitution, and he not-ed that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.”30 Without our independent Kansas courts, just as President Reagan recog-nized, our cherished liberties and freedoms would be little more than pipedreams written on dusty parchments. It is our independent Kansas courts that ensure that our constitutional liberties may be enforced.

V. An Independent Judiciary is One that is Subject to Checks and Balances

Separation of powers, as the name implies, requires that each branch of government stay out of the other branch’s core functions. There are some who believe that the separation of powers is best obtained by building easy to spot, high walls between the three powers of government. There is much to be said in favor of the idea that good fences make good neigh-bors. Indeed, the United States Supreme Court has often held as much. “It is [thus] essential to the successful working of this system that the persons intrusted [sic] with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers ap-

propriate to its own department and no other.”31 Similarly, our Kansas Supreme Court, dating back over 100 years, has “jealously [and strictly] . . . guarded and upheld this principle of the separation of sovereign powers.”32

This push to have bright and clear lines of demarcation between the judiciary and legislative branches of govern-ment must not, however, be confused to mean that the three branches of government must never interact. It is essential to remember that the founders created one government with three parts — not three separate governments.

Ours is a system of checks and balances. While our Kansas courts have always insisted that core judicial power be pre-served to the judiciary, even our Kansas supreme court cases that most strongly support this high-wall view recognize that “the line of division between the three powers is not marked distinctly, and it is not always easy to lay down an abstract rule defining each of the separate powers of sovereignty.”33

Because we have a system of checks and balances, our courts have always noted, often in the same breath as they espouse a strict separation of powers, that they are subject to legisla-tive checks. Hence, the “legislature . . . is at liberty to confer judicial power, and to create courts inferior to the supreme court,”34 to control the courts’ jurisdiction to a large degree,35 and the like.

Our Kansas experience is in line with what our nation’s founders’ envisioned.36 As President Washington instructed, separation of powers does not entail a lack of all interaction between the branches. Quite the opposite is the case. “The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against inva-sions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes.”37 President Madison gives us the same message, “these departments [of government must] be so far connected and blended as to give to each a constitutional control over the others, [or else] the degree of separation [of powers] . . . , as essential to a free government, can never in practice be duly maintained.”38 The branches must work together, to regulate and check each other, in much the same way that the sepa-rate organs of the body engage in unique core functions (the pumping of blood by the heart or the taking in of oxygen by the lungs) while still working together to sustain life.

From this point of view, the examples of the legislature’s rightful regulation of the Kansas courts abound. All of the fol-lowing are regulated by statute in Kansas: the rules of criminal procedure, the rules of civil procedure, the rules of evidence, the rules for personal jurisdiction, the rules for subject matter jurisdiction, the rules for limited actions, the rules for statutes of limitations, the rule capping punitive damages, and one could go on and on. These are all appropriate exercises of the legislature’s checks upon the judicial power, which do not in-fringe upon the independence of the courts. From this point of view, then, perhaps the best we can do in the abstract is conclude that “[o]ne department of government [usurps the powers of another department only when it exercises] coercive influence on the other.”39

VI. Our System of Independent Courts, While


opinion

EndnotEs

* This essay is derived from the written testimony given by the author to the Kansas Senate Judiciary Committee on Jan. 28, 2016. The testi-mony and this essay do not necessarily represent the views of the Univer-sity of Kansas or the University of Kansas School of Law.

1 Michael Wolff, Chief Justice Michael A. Wolff: 2006 State of the Judi-ciary Address, J. Mo. Bar, Mar.-Apr. 2006, at 56, 57.

2 Bernard Weinraub, Reagan Says He’ll Use Vacancies To Discour-age Judicial Activism, New York Times, Oct. 22, 1985, at A29, available at http://www.nytimes.com/1985/10/22/world/reagan-says-he-ll-use-vacancies-to-discourage-judicial-activism.html.

3 See In re Sims, 54 Kan. 1, 37 P. 135 (1894).4 Thomas Paine, Four Letters on Interesting Subjects 18-24, in the

Founders’ Constitution Vol. 1, Ch. 17, Doc. 19 (Univ. of Chicago Press), available at http://press- pubs.uchicago.edu/founders/documents/v1ch17s19.html.

5 George Washington, Farewell Address, Sept. 19, 1796, in W. B. Al-len, ed., George Washington: A Collection (Liberty Fund 1988), 512-17.

6 Statistical History of Case Filings by Judicial District, Kansas Average Caseload Per Judge, http://web.kscourts.org/stats/15/10year/2015%20District%20Judges%20Only.pdf.

7 Statistical History of Case Filings by Judicial District, Statewide Summary, http://web.kscourts.org/stats/15/10year/2015%20Statewide.pdf.

8 Bergstrom v. Spears Mfg. Co., 289 Kan. 605, 607, 214 P.3d 676 (2009).

9 See In re Davis, 58 Kan. 368, 49 P. 160, 162-63 (1897) (recognizing

Not Perfect, Remains the Envy of the WorldI am sure that this admittedly fuzzy separation-of-powers

standard may leave some unsatisfied. In response, I am re-minded of Prime Minister Winston Churchill’s famous quip: “It has been said that democracy is the worst form of govern-ment except all the others that have been tried.”40 What he meant was, democracy is a human endeavor. It is, therefore, not perfect. But it is better than any of the alternatives. We would all choose democracy, with all its headaches and dif-ficulties, over a dictatorship. Much the same can be said of independent courts with the power to strike statutes as un-constitutional.

I make no claim that the Kansas or federal courts have never erred, at least from my perspective, in applying constitutional law. I know full well that the Senate Judiciary Committee has passionate views on this topic as well. But perfection cannot be the right measure for any human institution—including our independent Kansas courts. The question must be, over the course of our history and looking toward an uncertain future, are our rights and liberties better protected with an independent judiciary? The answer to this question can only be “yes.”

If the Kansas Legislature and the People themselves, are assured that the courts have erred in the protection of their rights, their reaction should not be to tear down the inde-pendent courts as an institution. Instead, I recommend the sage advice of President Washington. “If, in the opinion of the people, the distribution or modification of the constitu-tional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution desig-nates. But let there be no change by usurpation [of the inde-pendent courts]; [it] is the customary weapon by which free governments are destroyed.”41 The People need not kowtow to Kansas constitutional law opinions —be it a matter of school finance or any other topic— that they as a whole believe was announced in error. Yet they and the legislature must not re-ject the rule of law either. Amendment of our state constitu-tion, not attack upon the independent judiciary, is the proper course.

Let the people decide if Article VI, § 6(b), the “suitable pro-vision for finance of . . . education[ ]” provision of our Kansas constitution should be amended. Perhaps the people will de-cide that placing targeted funding directives into the consti-tutional text—a constitutional-drafting decision that compels judicial engagement with school finance—is not wise. Or, perhaps, the people will continue to insist upon the consti-tutionalization of school finance as a check upon the other branches of our state government. It is the people’s govern-ment. They can decide.

What I am sure of, however, is that we should not destroy the institution of independent courts simply because the courts enforced the provisions of our written constitution, a document that our judges, like all lawyers in Kansas, have sworn an oath to uphold and defend.42 To echo Marbury v. Madison, enforcing the Kansas constitution is emphatically the duty of our Kansas courts. If the people wish the Kansas courts to be removed from the school finance fray, do not demand that they turn their backs upon their oaths of office. Instead, take the constitutionally prescribed course and seek

to amend Article 6.

VII. ConclusionPresident Eisenhower likely put it best. “Our system of

government, in my opinion, could not exist without an in-dependent judiciary . . . . I . . . believe that the United States respects the Supreme Court and looks to it as one of the great stabilizing influences in this country to keep us from going from one extreme to the other; and possibly in their latest series of decisions there are some that each of us has very great trouble understanding. But, even so, I think we should not forget this: the Supreme Court is just as essential to our sys-tem of government as is the President or the Congress, and we should respect its duties and its responsibilities.”43 Learning from President Eisenhower, an independent judiciary is best promoted by respecting that the independent Kansas courts have duties and responsibilities to perform in order to pre-serve the peoples’ freedoms— even if all of us do not always agree with each of their decisions. n

Lumen “Lou” Mulligan is the Earl B. Shurtz Research Professor of Law at the University of Kansas Law School. His legal experience includes co-founding a small firm, working at a large litigation firm, clerking on the Tenth Circuit Court of Appeals, and continuing a small appellate and consulting practice. The student body at KU has recognized him multiple times for his classroom teaching. He has written numerous articles and three books, which includes co-authoring the three-volume Kansas Code of Civil Procedure Annotated treatise. He serves on the KBA’s Appellate Section Executive Committee, is a member of the Lawrence Inn of Court, and is a frequent speaker across the country and the state.

[email protected]

About the Author


opinion

“the supremacy of the legislature unless restricted by express constitutional provision . . . . in making laws, supremacy in the exercise of legislative functions.”).

10 See Daniel Klerman & Paul Mahoney, The Value of Judicial Indepen-dence: Evidence from Eighteenth Century England, 7 Am. L. & Econ. Rev. 1 (2005).

11 William Rehnquist, Remarks of the Chief Justice Delivered at Ameri-can University’s Washington College of Law (Apr. 9, 1996), http://www.lect-law.com/files/jud38.htm

12 The Declaration of Independence (U.S. 1776).13 The Federalist No. 48 (James Madison) (Clinton Rossiter ed.,

1961).14 The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter ed.,

1961). 15 George Washington, Farewell Address, supra note 5.16 5 U.S. 137 (1803).17 Id. at 176.18 Id. at 177-78. 19 D.C. Code §§ 7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4)

(2001).20 D.C. v. Heller, 554 U.S. 570, 635 (2008).21 Kansas v. Mike W. Graham & Assocs., LLC, 42 Kan. App. 2d 1030,

1033, 220 P.3d 1105, 1108 (2009). 22 In re Garden City Med. Clinic, P.A., 36 Kan. App. 2d 114, 114, 137

P.3d 1058, 1059 (2006).23 Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365 (2010).24 N.L.R.B. v. Noel Canning, 573 U.S. ___, 134 S. Ct. 2550, 2574

(2014).25 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751,

2775 (2014).26 See Tim Carpenter, Legislators Blast $20 Million Deal for Power Plant

in Topeka, The Topeka Capital-Journal, Jan. 20, 2016, http://m.cjonline.com/news/2016-01-20/legislators-blast-20-million-deal-power-plant-topeka#gsc.tab=0.

27 Marbury, 5 U.S. at 163.28 Auditor v. Atchison, T. & S. F. R. Co., 6 Kan. 500, 505 (1870); see

also State v. Johnson, 61 Kan. 803, 60 P. 1068, 1072 (1900) (discussing the

three departments of government created by the Kansas constitution and the principle that “persons charged with the exercise of powers properly belonging to the one shall not exercise any functions pertaining to either of the others”).

29 In re Sims, 54 Kan. 1, 37 P. 135, 135 (1894).30 John Roberts, Opening Statement for his Senate Confirmation

Hearing (Sept. 12, 2005), available at http://www.cnn.com/2005/ POLITICS/09/12/roberts.statement/.

31 Kilbourn v. Thompson, 103 U.S. 168, 190–91 (1880).32 State v. Johnson, 61 Kan. 803, 60 P. 1068, 1075 (1900).33 Id. at 1074.34 In re Sims, supra note 29, 37 P. at 135.35 See Chicago, K. & W. R. Co. v. Harris, 42 Kan. 223, Syl. ¶ 1, 21 P.

1071 (1889) (noting that courts are given jurisdiction “by the constitution and the statutes”).

36 “As to the doctrine of separation of powers, . . . the Kansas Constitu-tion is almost identical to the federal Constitution. The doctrine . . . is an inherent and integral element of the republican form of government and is expressly guaranteed to the states by the federal Constitution.” Gleason v. Samaritan Home & Church Mut. Ins. Co., 260 Kan. 970, 982, 926 P.2d 1349 (1996). We may fairly, then, look to both federal and Kansas law in setting a sound course in preserving the separation of powers in our state.

37 George Washington, Farewell Address, supra note 5.38 The Federalist No. 48 (James Madison) (Clinton Rossiter ed.,

1961).39 State v. Bennett, 219 Kan. 285, 290, 547 P.2d 786 (1976).40 Winston Churchill, Speech in the Parliament of the United King-

dom (1947).41 George Washington, Farewell Address, supra note 5. 42 See Kan. Sup. Ct. R. 720(a) (“Before becoming eligible to practice

law in the State of Kansas, an applicant must take the following oath: ‘You do solemnly swear or affirm that you will support and bear true allegiance to the Constitution of the United States and the Constitution of the State of Kansas . . .’”).

43 Dwight Eisenhower, The President's News Conference (June 26, 1957), http://www.presidency.ucsb.edu/ws/?pid=10822.


Appellate Decisions

TWO-YEAR SUSPENSION IN THE MATTER OF DAVID A. HARDY

NO. 114, 725 – MARCH 25, 2016FACTS: The Office of the Disciplinary Administrator filed

a complaint against Hardy in July 2015, alleging that Hardy violated KRPC 8.4(b) and 8.4(g) by committing a criminal act that reflected adversely on his honesty. The claims arose af-ter Hardy was convicted of felony driving under the influence. Hardy's license to practice law in Missouri was indefinitely suspended in February 2015. After noting the mitigating fac-tors, including Hardy's impairment, his self-reporting of the incident, and his willingness to seek treatment, the hearing panel recommended that Hardy's law license be suspended for two years.

HELD: The factual allegations and legal conclusions were not challenged by Hardy. The Court unanimously adopted the recommendation and suspended Hardy's license for two years, with the suspension retroactive to January 7, 2015, the date that a temporary suspension was put in place.

ORDER OF SUSPENSIONIN THE MATTER OF CHARLES P. VAUGHN

NO. 114,582 – MARCH 4, 2016FACTS: Vaughn admitted to practice, but resides and pri-

marily works in Florida. A client in a divorce matter filed a complaint in Florida alleging that the divorce decree con-tained multiple errors and that Vaughn double billed for cer-tain services. There was also evidence that Vaughn used mon-ey from his "cost funds" to pay a portion of his attorney fee balance, even though there had not been permission given to do so. Because of this behavior, the Supreme Court of Florida suspended Vaughn for 91 days, beginning in October 2014. Vaughn has not yet applied for reinstatement. The matter came to Kansas as one of reciprocal discipline.

HEARING PANEL: After reviewing the evidence from the Supreme Court of Florida, a hearing panel of the Kansas Board for Discipline of Attorneys found multiple violations of the Kansas Rules of Professional Conduct. The panel recom-mended a 91 day suspension of Vaughn's Kansas law license, with reinstatement to practice tied to his reinstatement in Florida.

HELD: The court accepted the findings and recommenda-tions of the hearing panel and suspended Vaughn's ability to

practice. Once Vaughn has been reinstated in Florida and is in good standing there he may take steps to again become active in Kansas.

Civil

ADMINISTRATIVE LAW—STATUTESHANSA CENTER FOR OPTINUM HEALTH V. KANSAS

BOARD OF HEALING ARTS, ET AL.SHAWNEE DISTRICT COURT – AFFIRMED

NO. 113,986 – MARCH 4, 2016FACTS: A former patient filed suit against the Hansa Cen-

ter and a treating chiropractor claiming negligence which re-sulted in two subsequent hospital stays. Although the patient did not prevail in small claims court, the chiropractor got a letter from the Board of Healing Arts (Board) requesting medical records relating to the claim. The chiropractor pro-vided some information, but did not give a "complete written narrative" about the incident and did not send any medical records. The Board later sent an administrative subpoena to the Hansa Center requesting the production of medical re-cords, including notes and correspondence. The center sought to have the subpoena quashed, and that request was denied.

ISSUE: Scope of administrative subpoenaHELD: The Board has statutory power to "make all neces-

sary investigations" relative to the Kansas Healing Arts Act. As a check on that power, the district court may quash an ad-ministrative subpoena if, in the court's opinion, the requested evidence does not relate to acts which could be grounds for disciplinary action or if the subpoena requests irrelevant infor-mation or does not specifically describe the evidence sought. In this case, the allegations made the patient justified an inves-tigation into the chiropractor's conduct and the subsequent request for records.

STATUTES: K.S.A. 2014 Supp. 65-2836, -2837, -2840; K.S.A. 60-245(b), K.S.A. 40-3409, K.S.A. 65-2801, K.S.A. 65-2839a

ADMINISTRATIVE LAW—TELECOMMUNICATIONSKANSAS CITY POWER & LIGHT COMPANY V. THE

STAET CORPORATION COMMISSION OF THE STATE OF KANSAS

ORIGINAL ACTION – AFFIRMEDNO. 114,781 – MARCH 9, 2016

FACTS: After the Kansas Corporation Commission (KCC) granted Kansas City Power & Light (KCPL) a $48.67 mil-

All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at [email protected] or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions.

AppellAte Decisions

supreme courtAttOrney DisCipline


Appellate Decisions

lion rate increase, KCPL requested more, arguing that the Commission erred when calculating the rate increase. Specifi-cally, KCPL claimed that the KCC used the wrong return on equity when calculating KCPL's cost of capital. There were four expert calculations submitted to the KCC for what an appropriate return on equity would be. After it was displeased with the final calculation, KCPL appealed, claiming that the KCC's return on equity determination was not supported by substantial competent evidence.

ISSUE: Whether the KCC properly determined the appro-priate return on equity when calculating the rate increase

HELD: The KCC's order may only be set aside if it is not supported by substantial competent evidence "based upon the record as a whole" or if it is otherwise unreasonable, arbitrary, or capricious. The KCC has been given broad discretion in executing its specialized and complex areas of operation. In its final order, the KCC justified why it believed that KCPL's proposed return on equity was too high, and its reliance on a different expert's testimony was supported by findings in the record on appeal. In an appeal such as this, the court cannot make credibility findings of witness testimony; that sort of fact-finding is left to the KCC. The KCC made a reasonable decision based on the evidence presented that was neither ar-bitrary nor capricious.

STATUTES: K.S.A. 2015 Supp. 77-621; K.S.A. 66-118c, K.S.A. 77-601, -621

CONSTITUTIONAL LAW—DAMAGES—INSURANCE—STATUTES

HILBURN V. ENERPIPE, LTD.SEDGWICK DISTRICT COURT – AFFIRMED

NO. 112,765 – MARCH 11, 2016FACTS: A car in which Hilburn was riding was rear-ended

by a truck owned and operated by Enerpipe, Ltd. Injuries from the accident necessitated back surgery and resulted in chronic pain for Hilburn. A jury returned a verdict of $335,000 in mostly noneconomic damages for Hilburn. The district court, over Hilburn's objection, reduced the damages to $250,000 under the Kansas noneconomic loss damages statute. Hilburn appealed the constitutionality of the cap as applied to a negli-gence claim that did not involve medical malpractice.

ISSUES: (1) Whether the Miller v. Johnson quid pro quo test applies to claims under Section 5 of the Kansas Constitu-tion and (2) Whether the noneconomic loss cap applies to negligence claims not involving medical malpractice

HELD: A panel of the Kansas Court of Appeals is bound by prior precedent from the Kansas Supreme Court. Any analysis regarding the constitutionality of the damages cap must be made using the quid pro quo test. Since motor carrier liabil-ity insurance is mandatory in Kansas, the state "maintains an interest" in making sure that motor carrier insurance remains affordable and available. And because insurance is available, a "reliable source of recovery" exists through motor carrier liability insurance. This availability satisfies the second step in the quid pro quo test, rendering the damages cap constitu-tional as applied to Hilburn.

STATUTES: 49 U.S.C. § 31139(b), § 13906(a)(1) (2012); Kansas Constitution, Section 5, Kansas Constitution, Section 18; K.S.A. 2010 Supp. 40-3104, -3403, 66-1,108b, -1,128(a); K.S.A. 40-3102, -3104, -3107, -3402(a), 60-19a02

EVIDENCE—NEGLIGENCE—RAILROADS—SUMMARY JUDGMENT—TORTS

SMART V. BNSF RAILWAY COMPANYSHAWNEE DISTRICT COURT – AFFIRMED

NO. 113,809 – MARCH 4, 2016FACTS: Smart was employed by BNSF for almost 20 years.

He filed this action under the Federal Employers' Liability Act (FELA) claiming to have suffered cumulative trauma in-juries to his neck, back, hips, legs, and arms as a result of his job duties. After deposing Smart's sole expert witness, BNSF moved for summary judgment, claiming that Smart would not be able to prove his claim for neck injuries. That motion was granted, with the district court finding that the expert's testimony lacked "sufficient factual foundation to show its re-liability."

ISSUES: (1) The scope of FELA and (2) The reliability and admissibility of the expert's testimony

HELD: While there is a lower standard of causation in FELA actions, the employee must still prove the traditional common-law elements of negligence. And courts need not consider expert testimony that would otherwise be inadmis-sible. The purpose of a Daubert analysis is to evaluate whether the proposed expert's conclusions were reached in a reliable manner. In this case, where the expert's testimony was not linked to Smart's actual workplace or the particular tools that he used, the testimony lacked reliability and would not have been helpful to the jury.

STATUTES: 45 U.S.C. §51; K.S.A. 2015 Supp. 60-456; K.S.A. 60-456, -457, -458

JURISDICTION—PARENT AND CHILDIN THE INTEREST OF N.U.FORD DISTRICT COURT

REVERSED AND DISMISSEDNO. 114,161 – MARCH 11, 2016

FACTS: N.U. is a child with a home state of Nebraska. The child's father resides in Nebraska, but the mother lives in Kansas. In 2015, a Kansas district court exercised temporary emergency jurisdiction over N.U. to place the child with her mother in Kansas. When the six-month period of emergency jurisdiction expired, neither the state nor the mother had at-tempted to transfer permanent jurisdiction from Nebraska to Kansas. The district court granted the mother's motion al-lowing her more time to accomplish that transfer. The father appealed, claiming that the state's temporary emergency juris-diction had expired.

ISSUES: (1) Whether the appeal is moot and (2) Whether Kansas properly extended temporary emergency jurisdiction

HELD: Appellate courts do not generally decide moot ques-tions. While Nebraska might have relinquished jurisdiction after the expiration of the temporary emergency jurisdiction in Kansas, questions still remain regarding the Kansas court's actions. Accordingly, there remains an active controversy that may be heard by the court. A finding that a child is in need of care by itself is not sufficient to trigger the exercise of emer-gency jurisdiction under the UCCJEA. And, the emergency jurisdiction is temporary. The state exercising emergency ju-risdiction must determine how long the emergency order can remain in effect. In this case, the district court determined that six months would be an adequate period. Once that six-


month period expired, the Kansas district court lost jurisdic-tion.

STATUTES: K.S.A. 2015 Supp. 23-37,201, -37,204, 38-2273, -2274, 60-2103; K.S.A. 2014 Supp. 23-37,202

CriMinAl

APPELLATE PRACTICE – CRIMES AND PUNISHMENT – CRIMINAL PROCEDURE

STATE V. PERRYBROWN DISTRICT COURT – REVERSED; COURT OF

APPEALS – AFFIRMED NO. 109,506 – MARCH 25, 2016

FACTS: Perry and husband Shelly each pled no contest to unlawful distribution of drug precursor and unlawful posses-sion of drug precursor. Defense counsel filed no direct appeal. Perry filed a K.S.A. 60-1507 motion arguing for sentence reduction under the identical offense doctrine discussed in State v. Snellings, 294 Kan. 149 (2012), a case handed down the date of Perry’s sentencing. District court held Snellings applied only to the possession of drug precursor conviction, and reduced that sentence. Perry appealed. Court of Appeals remanded for hearing to determine if any exception under State v. Ortiz, 230 Kan. 733 (1982), excused the late appeal. District court found no exception applied. Court of Appeals panel in Perry’s case was reversed in unpublished opinion, holding the third Ortiz exception applied. It also ruled in Perry’s favor on merits of her Snellings challenge, and ordered resentencing on Perry’s conviction for unlawful distribution of drug precursor. State’s petition for review on Ortiz issue granted. State did not contest panel’s ruling on merits of identical offense doctrine.

ISSUES: Third Ortiz Exception for Untimely AppealHELD: As in Shelly decided this date, evaluation of third

Ortiz exception requires consideration of whether the de-fendant received effective assistance of counsel under Roe v. Flores-Ortega, 528 U.S. 470 (2000). A criminal defendant whose counsel erroneously advises that there is no issue wor-thy of direct appeal is eligible for application of third Ortiz exception if the defendant demonstrates that a timely appeal would have been taken but for the erroneous advice. Court of Appeals was affirmed on this point of law.

STATUTES: K.S.A. 2011 Supp. 21-5710; K.S.A. 60-1507

APPELLATE PRACTICE – CRIMES AND PUNISHMENT STATE V. SHELLY

BROWN DISTRICT COURT – REVERSED; COURT OF APPEALS – REVERSED AND REMANDED

NO. 109,292 – MARCH 25, 2016FACTS: Shelly and wife Perry each pled no contest to un-

lawful distribution of drug precursor and unlawful possession of drug precursor. Defense counsel filed no direct appeal. Shelly filed K.S.A. 60-1507 motion arguing for sentence re-duction under the identical offense doctrine discussed in State v. Snellings, 294 Kan. 149 (2012), a case handed down the date of Shelly’s sentencing. District court held Snellings ap-plied only to the possession of drug precursor conviction, and reduced that sentence. Shelly appealed. Court of appeals re-manded for hearing to determine if any exception under State

v. Ortiz, 230 Kan. 733 (1982), excused the late appeal. Shelly argued the first exception applied because he was not informed of right to appeal the severity level of the sentence as required by State v. Patton, 287 Kan. 200 (2008), and third exception applied because defense counsel knew Shelly wanted to appeal the sentence and failed to file timely notice of appeal. District court found that no exception applied, noting third exception not applicable because Shelly did not direct counsel to perfect an appeal. Court of Appeals panel in Shelly’s case affirmed and dismissed the appeal. 49 Kan. App. 2d 942 (2014). Shelly’s petition for review was granted.

ISSUES: (1) First Ortiz exception for untimely appeal, (2) Third Ortiz exception for untimely appeal

HELD: Panel did not err in concluding the first Ortiz excep-tion was inapplicable. Patton was discussed and distinguished.

Evaluation of third Ortiz exception requires consideration of whether the defendant received effective assistance of coun-sel under Roe v. Flores-Ortega, 528 U.S. 470 (2000). That was not done in this case by district court or the panel. As to whether Shelly satisfied the exception’s standard, federal cir-cuit court opinions were cited for persuasive guidance. When counsel erroneously advises there is no issue worthy of direct appeal, a criminal defendant is eligible for application of third Ortiz exception if the defendant demonstrates a timely appeal would have been taken but for the erroneous advice. Under facts in this case, the third Ortiz exception permitted Shelly’s untimely direct appeal. Court of Appeals’ dismissal of the appeal is reversed and case is remanded for consideration of Shelly’s Snellings argument on his distribution of drug precur-sor conviction. See also Perry’s appeal, decided the same date.

STATUTES: K.S.A. 2015 Supp. 22-3608(c); K.S.A. 2011 Supp. 21-5710; K.S.A. 22-3210(a)(2), -3424(f ), -4505, 60-1507

CRIMINAL LAW – STATUTESSTATE V. JORDAN

SEDGWICK DISTRICT COURT – AFFIRMEDNO. 106, 409 – MARCH 25, 2016

FACTS: After Jordan allegedly drove away with the car while taking a test drive, police stopped him for traffic violations. In one case, he was charged with the commission of four traffic offenses. The case went to trial on stipulated facts, and Jordan was found guilty of three of the four crimes charged. In a sec-ond case, Jordan was charged with theft by deception and in-tentionally obtaining control over a stolen license plate. Prior to trial, defense counsel moved to dismiss the charges based on K.S.A. 21-3102(2)(a), the compulsory joinder rule. The motion was denied, and Jordan was convicted after a bench trial. On appeal, Jordan challenged the district court's refusal to dismiss for failure to join.

ISSUE: (1) Whether the District Court Erred By Failing to Dismiss the Complaint Due to the State's Failure to Join Charges

HELD: Compulsory joinder exists to prevent the state from "substantially proving" a crime at a trial where that crime is not charged and then essentially retrying the defendant for that same crime in a different trial where the crime is charged. In order to have the compulsory joinder rule bar subsequent prosecution, the defendant must show that evidence present-


ed at the first trial would lead a rational factfinder to find the defendant guilty at the second trial. In this case, the evidence at Jordan's first trial was insufficient to prove guilt, and the district court correctly denied Jordan's motion to dismiss.

DISSENT: Justice Johnson would have revisited the court's prior decision in State v. Wilkins, as he believes it dilutes the joinder requirements that protect a criminal defendant's con-stitutional rights.

STATUTE: K.S.A. 21-3108(2)(a)

CRIMINAL PROCEDURE – MOTIONSSTATE V. DAVISSON

NEOSHO DISTRICT COURT – AFFIRMEDNO. 109,778 – MARCH 25, 2016

FACTS: Davisson filed a 2011 motion to withdraw his 2000 guilty plea. At the evidentiary hearing to determine if excusable neglect justified the late motion, Davisson claimed he had been unaware of the plea withdrawal statute and time limit for filing. The District court found this did not consti-tute excusable neglect, and dismissed the motion. Davisson appealed.

ISSUE: Excusable Neglect - K.S.A. 2015 Supp. 22-3210(e)(2)

HELD: Issue of first impression for Kansas Supreme Court. Based upon holding and rationale in State v. Woodward, 288 Kan. 297 (2009), which rejected the use of newly found statutory grounds in support of motion to withdraw plea, a defendant’s untimely use of newly found statutory right to file such a motion was rejected. Under circumstances of this case, Davisson’s ignorance of the law was insufficient to show excusable neglect that would justify the late filing. Civil and criminal cases were cited for the proposition that ignorance of the law should not constitute excusable neglect. District court’s decision was affirmed.

STATUTES: K.S.A. 2015 Supp. 22-3210, -3210(d), -3210(d)(2), -3210(e)(1), -3210(e)(2), -3601(b)(3), 60-260(b)(1); K.S.A. 2010 Supp. 22-3210(d); K.S.A. 22-2901,-3

CRIMINAL PROCEDURESTATE V. GRAY

SEDGWICK DISTRICT COURT – AFFIRMED NO. 109, 912 – MARCH 18, 2016

FACTS: Gray was convicted of four counts of rape and one count of attempted rape. District court imposed con-secutive sentences for each rape conviction, and a concurrent sentence for the attempted rape conviction. Twenty-six years later Gray filed a motion under K.S.A. 22-3504 to correct an illegal sentence, which the district court summarily dis-missed. On appeal Gray claimed the plain language of K.S.A. 22-3504 dictates that movants should be entitled to counsel and a hearing, and argued for reversal of Kansas case law to the contrary. He also challenged the sentence as ambiguous because the sentencing court failed to identify crimes and stat-utes for three rape charges, and failed to identify statute for rape charge underlying the attempt.

ISSUES: (1) Procedure for K.S.A. 22-3504 motion, (2) Le-gality of sentence

HELD: District court used proper procedures in summar-ily denying Gray’s motion to correct an illegal sentence. No convincing argument was advanced for withdrawing long-

standing rule that district court may summarily dismiss a mo-tion to correct an illegal sentence if district court’s preliminary examination of the motion and record of the case conclusively shows the defendant is not entitled to relief.

Under facts of this case, district court did not err in con-cluding that Gray’s sentence was legal. District court’s denial of Gray’s motion to correct an illegal sentence was affirmed.

STATUTES: K.S.A. 2015 Supp. 22-3601; K.S.A. 21-3301, -3502, -4501(b), -4618, 22-3504, -3504(1), -3504(2)

CRIMINAL LAW—STATUTESSTATE V. MARTIN

SEDGWICK DISTRICT COURT – REVERSED AND REMANDED

NO. 113,189 – MARCH 4, 2016FACTS: Martin had prior juvenile adjudications for bur-

glary which were scored as person felonies for criminal history purposes. Many years later, Martin filed a motion to correct illegal sentence in which he claimed that he was entitled to relief because of an improper criminal history score. The State argued that Martin's claims were barred by the doctrine of res judicata because Martin could have challenged his criminal history score on direct appeal, but failed to do so. The State also alleged that the Kansas Supreme Court's holding in State v. Dickey should not be applied retroactively to Martin's case.

ISSUES: (1) Res Judicata and (2) Retroactive application of criminal case law

HELD: The burglary statute in effect at the time of Mar-tin's prior convictions did not contain a dwelling element, rendering unconstitutional the scoring of those convictions as person felonies. The appellate courts have been given jurisdic-tion to correct an illegal sentence at any time. This statutory directive prevents application of the doctrine of res judicata given the facts of this case. And even though a motion to cor-rect illegal sentence may not be based on a constitutional chal-lenge to the sentence, if a constitutional challenge results in the determination that the criminal history score is incorrect, the resulting sentence is illegal and may be corrected at any time.

STATUTES: K.S.A. 1990 Supp. 21-3715; K.S.A. 22-3504(1)


Appellate Decisions

Appellate Practice Reminders . . . From the Appellate Court Clerk’s OfficeAnnual Attorney Registration for 2016-2017

In mid-May the Appellate Clerk’s Office will mail 2016-17 attorney registration forms to over 15,500 attorneys currently registered in Kansas. Both the Annual Registration Form and fees are due on or before July 1, and a late fee will be im-posed after July 31. The active registration fee is $175, and the inactive fee is $65. There is no fee for attorneys on retired or disabled status. The Supreme Court has authorized a $100 late fee for delinquent registration. Any registration fee received after July 31 must be accompanied by the $100 late payment fee.

Remember that registration fees are sent to a bank lockbox. Upon receipt by the bank, fees are deposited, and the forms are sent to the Registration Office for data entry. The bank deposit date is the date the fee is "received by the Clerk." Mail the registration form and fee well before the deadline to avoid the $100 late fee.

PAY CLOSE ATTENTION TO THESE POINTS: • Enclose your fee with the registration form. A check or money order is required. Attorney Registration is not able to

accept payment by credit or debit card.• Sign the back of the form. Unsigned forms will be returned as incomplete.• Check to make sure your email address is correct. All attorneys on active status are required to provide an email address,

and others are encouraged to provide an email address.• Check your own information online at www.kscourts.org. Click on “Online Attorney Directory” found on the "At-

torney Registration" page under the "Quick Links" tab. Only business addresses are listed.• A firm check that contains payment for more than one attorney must be accompanied by (1) a list giving firm name,

firm address, name of each attorney, attorney’s registration number, and amount paid for each attorney; and (2) a com-pleted registration form for each attorney listed.

• A change from inactive to active status requires a $25 change of status fee. The total fee is $200. If the attorney has been on inactive status for more than two years, a separate “Application for Return to Active Status” form must be completed. Contact Attorney Registration to obtain that form. Call Debbie Uhl at (785) 296-8409 or email [email protected].

Failure of any attorney to receive a statement from the Clerk does not excuse the attorney from paying the fee. See Supreme Court Rule 208(c) (2015 Kan. Ct. R. Annot. 343). Most statement returns occur because the Clerk’s Office does not have a current address for the attorney. An attorney must notify the Clerk of any address change within 30 days of the change. See Rule 208(c). To update your information, please submit an address change form online, which is available on the website http://www.kscourts.org.

For other questions related to appellate practice, call the Clerk’s Office at (785) 296-3229 and ask to speak with Douglas T. Shima, Clerk of the Appellate Courts.


Appellate Decisions

http://www.ksbar.org/page/ethicsforgood


Upcoming CLE Schedule

2016 Midwest Intellectual Property InstituteFriday, May 6, 2016Sprint Corporation6050 Sprint ParkwayOverland Park, KS 66251

2016 Solo and Small Firm ConferenceFriday, May 6-7, 2016Atrium Conference Center1400 N Lorraine St.Hutchinson, KS 67501

Corporation, Banking and Business, Corporate Counsel and TaxFriday, May 13, 2016Hyatt Place Kansas City/Lenexa City Center8741 Ryckert St.Lenexa, KS 66219

2016 Criminal Law CLEFriday, May 20, 2016Kansas Law Center1200 SW Harrison St.Topeka, KS 66612

Ethics for Good XVIIFriday, May 20, 2016Polsky Theatre, JCCCCarlsen Center12345 College Blvd, (College & Quivira)Overland Park, KS 66210

Legislative & Case Law Institute DebutFriday, June 3, 2016Topeka, Kansas City Area, Wichita

Brown Bag Ethics ReplayTuesday, June 7, 2016Wichita, Topeka

The Relevance of Civil Rights Encompassing the Daily Practice of Law DebutFriday, June 10, 2016Kansas Law Center1200 SW Harrison St.Topeka, KS 66612

The Relevance of Civil Rights Encompassing the Daily Practice of Law ReplayMonday, June 13, 2016Kansas Law Center1200 SW Harrison St.Topeka, Kansas 66612

Brown Bag Ethics Replay Monday, June 13, 2016Kansas Law Center1200 SW Harrison St.Topeka, Kansas 66612

KBA Replay Week – Brown Bag Ethics, The Relevance of Civil Rights Encompassing the Daily Practice of Law, and LCLIJune 20-24Multiple Locations

Ethics for Good XVIIWednesday, June 22, 2016Nelson Atkins Museum of ArtAtkins Auditorium4525 Oak St.Kansas City, MO 64111

Brown Bag Ethics Replay Monday, June 27, 2016Kansas Law Center1200 SW Harrison St.Topeka, Kansas 66612

LCLI ReplayFriday, June 27, 2016Kansas Law Center1200 SW Harrison St.Topeka, Kansas 66612

For more details or to register for a CLE visit www.ksbar.org/cle

Live

Webinar

Tips and Tricks for Legal Research on Casemaker: How to Use Your New ToolsMonday, June 6, 2016

Tips and Tricks for Legal Research on Casemaker: How to Use Your New ToolsWednesday, June 15, 2016


A Special Presentation of Law WiseA free electronic publication presented by your LRE Committee

The KBA Law Related Education Committee (LRE) wishes you a Happy Law Day! One of the publications that the LRE Committee oversees is Law Wise, which you will find printed in the following pages. This electronic publication provides educators and students with general information about law-related matters, updates on events happening throughout the state (such as the High School Mock Trial program, We the People, and iCivics), and lesson plans. Law Wise is published six times a year during the school year, and is designed primarily for middle school and high school students and teachers. The March 2016 issue is focused on Law Day and the 50th anniversary of Miranda v. Arizona.

Law Day originated in 1957 when American Bar Association (ABA) President Charles Rhyne envisioned a special day for celebrating the U.S. legal system. On Feb. 3, 1958, President Dwight D. Eisenhower issued a proclamation to establish Law Day. In 1961, May 1 was designated by joint resolution of Congress as the official date for celebrating Law Day. Each year, the ABA selects a theme. This year the theme is Miranda—More than Words. In the following pages, please enjoy reading about Miranda v. Arizona in the March edition of Law Wise, and consider receiving every issue electronically.

Additional information about Law Day and Miranda v. Arizona can be found on www.ksbar.org/lawday

In addition to the March issue of Law Wise, the KBA provided speakers for any teacher or organization requesting a guest speaker for Law Day. Hard copies of the March issue were also made available.

Please enjoy this issue and encourage students, teachers and others to sign-up to receive this free and informative publication. You can view past issues at www.ksbar.org/lawwise. Just click on “Group Pages” in the top left corner and select “Current School Year” or "Archive".

ChairHon. G. Joseph Pierron Jr.

Board LiasonCheryl Whelan

Staff LiasonAnne Woods

MembersHon. Kathryn A. Gardner

Don Gifford Ruth E. Graham Linda R. Hayse Ron Keefover Bruce W. Kent

Hon. Marla J. Luckert Crystal D. Marietta

Hon. Christel E. Marquardt Rick Reed

Sarah L. Shipman Donna L. Whiteman

Law Related Education Committee

2015-16

www.ksbar.org/lawwise

IN THIS ISSUE“Miranda: More than Words” Named 2016 Law

Day theme .................................................. 1

Kansas Bench and Bar Leaders Urge Reflection on Law Day ....................... 3

Who was Ernesto Arturo Miranda? ................. 4

Lesson Plan 1: Miranda Rights for Juveniles: Yarborough v. Alvarado ............................... 5

Lesson Plan 2: Miranda v. Arizona 654 U.S. 437 (1966) ................................... 6

Terrific Technology for Teachers ...................... 7

March Buzz .................................................... 7

2016 Mock Trial Tournament Update .............. 7

Dear Readers: NEW Law Wise Group ............. 8

LAW WISE

March 25-26 State High School Mock Trial Competition

May 1 Law Day

CALENDAR OF EVENTS

Greetings from the Kansas Bar Association (KBA). Welcome to this edition of Law Wise and the fifth edition of the 2015-2016 school year.

Editor: Ron KeefoverCoordinators: Hon. G. Joseph Pierron Jr. • Anne Woods & Ryan Purcell, KBA staff

MARCH 2016 • ISSUE 5PUBLISHED BY

“Miranda: More than Words” Named 2016 Law Day theme

In 2016, the nation marks the 50th anniversary of perhaps the nation’s best-known U.S. Supreme Court case, Miranda v. Arizona, 384 U.S. 436 (1966). The Miranda Warning has become engrained in law enforcement

and has permeated popular consciousness through countless recitations in fi lms and television shows. Yet Miranda is only part of the story when it comes to the procedures for ensuring justice. This edition of Law Wise ex-plores the Miranda decision, its holding, the life and death of Ernesto Mi-randa, and some of the innumerable procedural protections and exceptions that resulted.

The Administrative Offi ce of the U.S. Courts explains the Supreme Court’s decision in the Miranda and its three related cases as follows:

The Supreme Court’s decision in Miranda v. Arizona, addressed four dif-ferent cases involving custodial interrogations. In each of these cases, the defendant was questioned by police offi cers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions and, in three of them, signed state-ments that were admitted at trial.

• Miranda v. Arizona: Miranda was arrested at his home and taken in custody to a police station where he was identifi ed by the complaining witness. He was then interrogated by two police offi cers for two hours, which resulted in a signed, written confession. At trial, the oral and writ-ten confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession.

• Vignera v. New York: Vignera was picked up by New York police in connection with the robbery of a dress shop that had occurred three days prior. He was fi rst taken to the 17th Detective Squad headquarters. He was then taken to the 66th Detective Squad, where he orally admitted the robbery and was placed under formal arrest. He was then taken to the 70th Precinct for detention, where he was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and answers. At trial, the oral confession and the transcript were presented to the jury. Vignera was found guilty of fi rst degree robbery and sentenced to 30-60 years imprisonment. The conviction was affi rmed without opinion by the Appellate Division and the Court of Appeals.

www.ksbar.org/lawwise

IN THIS ISSUE“Miranda: More than Words” Named 2016 Law

Day theme .................................................. 1

Kansas Bench and Bar Leaders Urge Reflection on Law Day ....................... 3

Who was Ernesto Arturo Miranda? ................. 4

Lesson Plan 1: Miranda Rights for Juveniles: Yarborough v. Alvarado ............................... 5

Lesson Plan 2: Miranda v. Arizona 654 U.S. 437 (1966) ................................... 6

Terrific Technology for Teachers ...................... 7

March Buzz .................................................... 7

2016 Mock Trial Tournament Update .............. 7

Dear Readers: NEW Law Wise Group ............. 8

LAW WISE

March 25-26 State High School Mock Trial Competition

May 1 Law Day

CALENDAR OF EVENTS

Greetings from the Kansas Bar Association (KBA). Welcome to this edition of Law Wise and the fifth edition of the 2015-2016 school year.

Editor: Ron KeefoverCoordinators: Hon. G. Joseph Pierron Jr. • Anne Woods & Ryan Purcell, KBA staff

MARCH 2016 • ISSUE 5PUBLISHED BY

“Miranda: More than Words” Named 2016 Law Day theme

In 2016, the nation marks the 50th anniversary of perhaps the nation’s best-known U.S. Supreme Court case, Miranda v. Arizona, 384 U.S. 436 (1966). The Miranda Warning has become engrained in law enforcement

and has permeated popular consciousness through countless recitations in fi lms and television shows. Yet Miranda is only part of the story when it comes to the procedures for ensuring justice. This edition of Law Wise ex-plores the Miranda decision, its holding, the life and death of Ernesto Mi-randa, and some of the innumerable procedural protections and exceptions that resulted.

The Administrative Offi ce of the U.S. Courts explains the Supreme Court’s decision in the Miranda and its three related cases as follows:

The Supreme Court’s decision in Miranda v. Arizona, addressed four dif-ferent cases involving custodial interrogations. In each of these cases, the defendant was questioned by police offi cers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions and, in three of them, signed state-ments that were admitted at trial.

• Miranda v. Arizona: Miranda was arrested at his home and taken in custody to a police station where he was identifi ed by the complaining witness. He was then interrogated by two police offi cers for two hours, which resulted in a signed, written confession. At trial, the oral and writ-ten confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession.

• Vignera v. New York: Vignera was picked up by New York police in connection with the robbery of a dress shop that had occurred three days prior. He was fi rst taken to the 17th Detective Squad headquarters. He was then taken to the 66th Detective Squad, where he orally admitted the robbery and was placed under formal arrest. He was then taken to the 70th Precinct for detention, where he was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and answers. At trial, the oral confession and the transcript were presented to the jury. Vignera was found guilty of fi rst degree robbery and sentenced to 30-60 years imprisonment. The conviction was affi rmed without opinion by the Appellate Division and the Court of Appeals.

www.ksbar.org/lawwise 2 LAW WISE | MARCH 2016

• Westover v. United States: Westover was arrested by local police in Kansas City as a suspect in two Kansas City rob-beries and taken to a local police station. A report was also received from the FBI that Westover was wanted on a felony charge in California. Westover was interrogated the night of the arrest and the next morning by local police. Then, FBI agents continued the interrogation at the station. After two-and-a-half hours of interrogation by the FBI, Westover signed separate confessions, which had been prepared by one of the agents during the interrogation, to each of the two robberies in California. These statements were introduced at trial. Westover was convicted of the California robberies and sentenced to 15 years’ imprisonment on each count. The conviction was af-fi rmed by the Court of Appeals for the Ninth Circuit.

• California v. Stewart: In the course of investigating a series of purse-snatch robberies in which one of the victims died of injuries infl icted by her assailant, Stewart was identifi ed as the endorser of checks stolen in one of the robberies. Stewart was arrested at his home. Police also arrested Stewart’s wife and three other people who were visiting him. Stewart was placed in a cell, and, over the next fi ve days, was interrogated on nine different occasions. During the ninth interrogation ses-sion, Stewart stated that he had robbed the deceased, but had not meant to hurt her. At that time, police released the four other people arrested with Stewart because there was no evi-dence to connect any of them with the crime. At trial, Stewart’s statements were introduced. Stewart was convicted of robbery and fi rst-degree murder and sentenced to death. The Supreme Court of California reversed, holding that Stewart should have been advised of his right to remain silent and his right to counsel. http://1.usa.gov/1nRYbF5

The issues before the high court were whether “statements obtained from an indi-vidual who is subjected to custodial police interrogation” are admissible against him in a criminal trial and whether “procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to in-criminate himself” are necessary.

The Supreme Court reversed the judg-ment of the Supreme Court of Arizona in Miranda, reversed the judgment of the New York Court of Appeals in Vignera, reversed the judgment of the Court of Appeals for the Ninth Circuit in Westover, and affi rmed the judgment of the Supreme Court of California in Stewart.

The Miranda decision was decided by a 5-4 decision that was fi led June 13, 1966. The majority opinion was written by Chief Justice Earl Warren. A dissent was written by Justice John Marshall Harlan, with a separate opinion, dissenting in part, written by Justice Tom Clark. �

(Continued from Page 1)

Signed copy of Miranda warning by Ernesto Miranda.

MARCH 2016 | LAW WISE 3 www.ksbar.org/lawwise

Law Wise asked three of Kansas’ bench and bar leaders for their comments on Law Day and this year’s Miranda-based theme. We begin with remarks by Chief Justice Lawton R.

Nuss:“It is my honor as Chief Justice of the Kansas Supreme Court

to urge citizens across the state to commemorate and celebrate Law Day, designated as May 1st by President Eisenhower in 1958, and by Congress three years later.

“The American Bar Association throughout the years has selected a theme as a focal point for our refl ection. This year, the ABA has chosen to recog-nize the 50th anniversary of one of our nation’s best-known U.S. Supreme Court cases, Miranda v. Arizona. The Miranda Warning—“you have the right to remain silent . . . “—has become ingrained in law enforcement, and has permeated popular consciousness through count-less recitations in fi lms, television shows,

and writings. Yet Miranda is only part of the story when it comes to procedures for ensuring justice.

“The 2016 Law Day theme—Miranda: More than Words— is designed to explore the procedural protections afforded to all of us by the U.S. and Kansas Constitutions, and why the preservation of these principles is essential to our liberty. It is my hope that we all pause to refl ect on how the rule of law, as safeguarded by our courts, continues to protect our liberties and rights under our U.S. and Kansas Constitutions.”

Kansas Bar Association President Natalie Haag echoed the Chief Justice’s sentiments in her statement for Law Wise when she wrote,

“For the last 25 years, shows like Law and Order have familiarized the Ameri-can public with the Miranda warning: the warning given to a suspect prior to a custodial interrogation which reminds the suspect of the right to remain silent and the right to counsel. The Miranda vs. Arizona decision is one of the cases

which exemplifi es the complexity of the United States Consti-tution. While there isn’t a provision in the Constitution saying that a suspect is entitled to a Miranda warning, the Constitution does include the Fifth Amendment right against self-incrimina-tion, the Due Process Clause of the Fourteenth Amendment

and the Sixth Amendment which guarantees criminal defen-dants the right to an attorney. All three of these protections melded together create the Miranda warning.

“It should be noted that 50 years ago the decision to exclude evidence of the confession of Ernesto Miranda, who confessed to raping and kidnapping a young woman, was certainly not a popular decision. However, the U.S. Supreme Court Justices took an oath to uphold the Constitution of the United States. Upholding this oath may at times result in decisions that run contrary to popular opinion. Independence from political pres-sure allows judges to make decisions that protect the rights of all Americans, even when the general public and political leaders disagree with the outcome.

“Even if you are a person who believes that the Miranda warning no longer serves a valid purpose, I encourage you to celebrate the fact that the Miranda v. Arizona decision repre-sents an historical example of how an independent judiciary allows a socially unacceptable or “bad” person to be protected by the Constitution to the same degree that a “good” or social-ly acceptable person might be protected,” the KBA president concluded.

Court of Appeals Judge G. Joseph Pierron Jr. said the Miranda decision gives meaning to our constitutional rights, but probably has not resulted in fewer confesions. He said:

“The Miranda ruling helps to give meaning to our constitutional rights under the Fifth (self-incrimination) and Sixth (right to counsel) Amendments in our Bill of Rights, which were adopted by we the people nearly 225 years ago. Richard A. Leo, of the University of San

Francisco School of Law, and George C. Thomas III, of Rut-gers Law School, have pointed out that “Two generations of empirical scholarship on Miranda suggest that the Miranda re-quirements have exerted a negligible effect on the ability of the police to elicit confessions and on the ability of prosecutors to win convictions. There is no good evidence that Miranda has substantially depressed confession rates or imposed signifi cant costs on the American criminal justice system.”

Miranda is probably the best known U.S. Supreme Court decision and there has been no serious movement to abolish it through constitutional amendment, which could be done. Interestingly, Miranda was retried without the use of his confes-sion and was convicted. �

Chief Justice Lawton Nuss

KBA President Natalie Haag

Hon. G. Joseph Pierron Jr.

Kansas Bench and Bar Leaders Urge Reflection on Law Day

www.ksbar.org/lawwise 4 LAW WISE | MARCH 2016

Who was Ernesto Arturo Miranda?

The website “fi ndagrave.com” (http://bit.ly/1nP56i9) de-scribes Miranda as an American legal fi gure who was born on March 9, 1941, in Mesa, Arizona. After the death

of his mother and while still in school, his troubles with the police began. A conviction of burglary while in the 8th grade resulted in incarceration at an Arizona reform school. Quickly upon release, another conviction and another term in reform school followed. A move to Los Angeles resulted in arrests for armed robbery and minor sex offenses, and after incar-ceration, he was sent back to Arizona.

A tour in the Army resulted in stockade time at hard labor for AWOL and various other charges. He was dishonorably discharged. Arrested in Nashville driv-ing a stolen car across state lines, he was sentenced to the federal prison system. Back in Phoenix, Miranda was arrested for armed robbery of a bank employee and the kidnap/rape of an 18-year-old woman. Inten-sive interrogation by the Phoenix police resulted in a written signed confession with a paragraph typed at the top stating the confession was made with full knowledge of his legal rights, and understanding any statement he made may be used against him. He was convicted solely on the strength of the confession. On appeal, the Supreme Court set down the rule re-quiring a defendant be advised of his right to remain silent and to have an attorney. Under the new rule, a confession obtained without this warning could not be used at trial. Released, he was re-arrested, “Mirandized” and convicted on the strength of an actual witness without the confession. He was sentenced to 20 to 30 years on each of the two counts, to be served concurrently. He served eleven years before being paroled.

After his release, he earned money by selling autographed Miranda warning cards but continued his criminal lifestyle with numerous arrests for driving offenses which resulted in suspen-sion of driving privileges. Found in the possession of a gun, he was returned to prison for another year. After his release, Miranda spent his time in bars living in cheap hotels. While playing cards at the La Amapola Bar in Phoenix, a violent con-frontation occurred. He was mortally wounded with a knife

and was pronounced dead on arrival at age 35 at Good Samar-itan Hospital. The suspect arrested was read his Miranda rights. Upon release, he absconded to Mexico. The case was closed.

Miranda was buried in the City of Mesa Cemetery, Mesa, Maricopa County, Arizona. �


Directions:1. Read the synopsis of facts for Yarborough v. Alvarado. 2. Complete the legal arguments for each side using the

graphic organizer. 3. With your class, review the possible opinions. Select the

opinion you fi nd most persuasive and articulate reasons why.

4. Read about the decision in Yarborough v. Alvarado and discuss which arguments appeared most persuasive to the Court.

Synopsis: Michael Alvarado was convicted of second-degree murder

and robbery for his alleged role in a 1995 killing. Alvarado, who was not the triggerman, was convicted in large part be-cause of incriminating statements he made during a two hour interview with a police detective. At the time of the interview, Alvarado was a 17-year-old high school student with no prior arrest record. The detective had contacted Alvarado’s mother, who agreed to bring him to the police station for questioning. When Alvarado arrived with his parents, the detective denied the parents’ request to remain with their son during the inter-view. While they waited in the lobby, Alvarado was questioned alone for two hours. He was not placed under arrest and was allowed to leave after the questioning ended. At no time was Alvarado advised that he had a right to remain silent, a right to consult an attorney prior to answering, or a right to leave the police station at any time. Alvarado alleges he was deprived of his Fifth and Sixth Amendment rights in violation of Miranda v. Arizona.

Following his criminal conviction, Alvarado brought a peti-tion in federal district court against Yarborough, the warden of the prison where he was being held. The district court denied Alvarado’s petition. However, the Ninth Circuit Court of Ap-peals reversed, holding that Alvarado was “in custody” when he was interrogated by police and, therefore, should have been read his Miranda warnings. The Ninth Circuit insisted that fed-eral criminal law treated children differently and this principle should apply to Miranda custody determinations.

Graphic Organizer: Legal Issue: In determining “custody” for purposes of Miranda, should a court apply a different stan-dard for juveniles?

Yarborough v. Alvarado: Decision—Majority: Justice Kennedy delivered the majority opinion in

a 5-4 decision that reversed the Ninth Circuit. The majority found that the state criminal court that convicted Alvarado had reached a reasonable conclusion that the minor was not in custody for Miranda purposes when he was interviewed. The Court cited a number of factors that indicated that Alvarado was not in custody at the time he was questioned, including the fact that he went to the station voluntarily, was never told he could not leave, was not threatened by authorities, was told the interview would be brief, and was allowed to return home afterwards. According to the Court, Miranda can be distin-guished from other cases that require special consideration of age for juvenile offenders.

The majority also stressed the importance of a clear rule for police to apply. Allowing different standards for juveniles would make it more diffi cult for police to determine when Mi-randa warnings are necessary.

Concurrence: Though she joined the majority, Justice O’Connor wrote a separate, single paragraph to emphasize her sense that in other cases the age of the defendant could be relevant to the custody determination. She suggested that the failure to consider age could justify reversal in other circum-stances. The fact that Alvarado was 17 years old made a dif-ference to her.

Dissent: Justice Breyer wrote a forceful dissent in which he criticized the majority’s characterization of the facts. Justice Breyer framed the issue in the following way:

What reasonable person, brought to a police station by his parents at police request, put in a small interrogation room, questioned for a solid two hours, and confronted with claims that there is strong evidence that he participated in a serious crime, could have thought to himself, “Well, anytime I want to leave I can just get up and walk out? The dissent said that the involvement of Alvarado’s parents suggested that his participa-tion was not voluntary and that a two-hour meeting gave the appearance of custody. The dissent also considered the many ways in which the court system treats juveniles differently, em-phasizing that confi nement determinations for juveniles should also be treated differently. �

L e s s o n P l a n 1

M i ra n d a R ig h t s fo r Ju ve n i l e s : Ya rb orough v. A l va ra d o

Source: http://bit.ly/22ldKbp Grades: 7–12

Arguments for Yarborough:

1.

2.

3.

Arguments for Alvarado:

1.

2.

3.


The evening news shouts out about the latest debates, and there are so many candidates that it may be confusing for

the learners in our schools. So what can we do? We can teach about voting and the election process. “The Election Process in America”, a 50 minute DVD from the Just the Facts Learn-ing Series, is packed with information about voting rights. It considers the vocabulary, and travels learners through some recent campaigns to explain. We also have books about sev-eral presidents, and other resources that will tempt learners to fi nd out more about: political parties, the electoral college, lobbyists, and more.

If any of these topics fi t your interests or needs, you may search online at emporiastate.worldcat.org and choose “Re-source Center” from the drop box to see the full array of ma-terials and resources available here at the Center. If you plan

to be in our area, we are located on the second fl oor of Visser Hall, on the campus of Emporia State University, and we would be proud to give you the guided tour. You may also call 620-341-5292 to check out resources during our hours, 9-6, Mon-day through Thursday, and 9-5 on Friday. We are able to mail out and receive items with no charge to the patron, thanks to the generosity of the Kansas Bar Association. Please help us to continue our “Buzz” here at the Law Related Education Collec-tion at Emporia State University! �

On February 27, six teams from the Regional Mock Trial Competitions advanced to State Competition on March 25-26. Congratulations!

Wichita Regional1. Sunrise Christian Academy (First Place)2. The Independent School (Second Place)3. Northeast Magnet High School (Third Place)

KC Regional1. Shawnee Mission East High School (First Place)2. Blue Valley Northwest High School (Second Place)3. Olathe North High School (Third Place)

March Buzz@ THE LAW-RELATED COLLECTION, EMPORIA STATE UNIVERSITY, TEACHERS COLLEGE RESOURCE CENTER

2016 Mock Trial Tournament Update

Janice Romeise(620) [email protected]

Corky the Hornet

TERRIFIC TECHNOLOGY FOR TE ACHER S

For a comprehensive look at the Miranda decision and its players, C-Span has chronicled it along with 11 other U.S. Su-preme Court landmark cases. Rich videos and interesting read-ing about those directly involved in the appeal may be found at: http://bit.ly/1UjftZH

The U.S. Supreme Court decision in Miranda v. Arizona is said to be one of the most controversial of any handed down in criminal law. The full text of the decision may be found here at: http://bit.ly/1RoWYfW

The Court’s decision in Miranda was met with criticism when it was handed down in 1966, and it continues to be contro-versial today. A table containing commentary on the decision and its effect on law enforcement may be used as an excellent discussion group tool in which students are asked to deter-mine whether various quotations on the decision are support-ing (pro) or criticizing (con.) See: http://bit.ly/1MpA7Qg

Additional resources and information on KBA Law Dayhttp://www.ksbar.org/LawDay

Sunrise participants (L to R): Sarah Myose, Cynthia Matson, Nathan Keck, Cameryn Rasmussen, Bethany Reeder (front); Emily Kelley (back); Gretchen Keck; Michael Goddard

SME participants (L to R): Caleb Hanlon, Iman Jaroudi, Nate Paris, Spencer Mitchell, Jack Eddy, (Not Pictured Reami Boone)


Changes to the Journal PolicySubstantive articlesThe primary purpose of KBA Journal articles and columns is to educate or inform Kansas law-yers about issues of substantive law while keeping our members abreast of legal developments. Accordingly, substantive article submissions should be oriented specifically to be of interest to Kansas lawyers, as distinguished from articles of general interest, or of particular interest to lawyers elsewhere in the U.S. Articles on current issues, recent changes in the law, and trends in the legal profession are especially encouraged. Articles dealing with Kansas law or of particular interest to Kansas lawyers will be given publication priority. Information should not duplicate other articles recently published in the Journal.

The subject matter should deal with the law as it is rather than a discussion of what the law should be (i.e., be practice oriented). A substantive article is not to advocate a position or policy. See discussion on opinion articles.

The Journal ordinarily does not publish substantive articles on topics in appellate litigation or on topics being deliberated in the current legislative session. No substantive article submitted for publication in the Journal should focus on, or draw conclusions from, a case that is pending. Articles by authors involved in pending proceedings on the topic of the article, or by authors whose firm is involved in such proceedings, will not be published, except as follows: The Board of Editors may publish articles on broad, common topics on which numerous proceedings often are pending, such as jurisdiction, as well as articles specifically approved by the Board of Editors as part of a forum for conflicting sides of one or more issues in any pending proceedings. The primary citation for each legal conclusion should be final, not pending appellate review. Upon request by an author, the Board of Editors will review any article relying heavily on non-final au-thorities to determine whether to publish it to illuminate one or more important issues despite the pendency of any proceedings on point. Prior to publication consideration, authors must disclose or disclaim their involvement in such pending proceedings.

The Journal will not publish articles being published in other bar association journals or law reviews. Please advise the Journal staff immediately if your article, or one like it, is pending for consideration, or being published, in another journal or other publication.

Further, be advised that only articles written by authors licensed in Kansas or by law professors at Kansas law schools will be accepted.Opinion articlesThe KBA Journal strives to publish articles that express the ideas and views of our members and display well-reasoned analysis. While we discourage both commercial writings and clear advo-cacy pieces, we may choose to flavor our publications occasionally with submissions containing analysis, opinion, and criticism of the present state of the law. These opinion articles may be ac-cepted when clearly identified as such and accompanied by sufficient legal authority on all sides of the issue to enable the reader to assess the validity of the opinion. When criticism is voiced, suggestions for reform should also be included. Criticism should be directed to issues only.

Although advocacy pieces that may be of particular interest to Kansas attorneys may be accepted for publication, the Board of Editors is cognizant that the Journal’s readership consists of a broad spectrum of individuals with varying viewpoints. When appropriate, the Board of Editors will


afford an opportunity for those with opposing viewpoints to be heard in subsequent issues. The Journal encourages pro/con articles by two or more authors who take opposing views on impor-tant law-related issues.

Procedure for submitting substantive and opinion articles The Board of Editors considers potential new articles at each quarterly meeting. If you have not already done so, you will need to submit a typed, brief outline of the article you propose to submit. Please include a short explanation of why you believe your topic will be of interest to Kansas attorneys. If your draft or topic is approved by the Board of Editors, you will be notified and assigned an editor to assist you in the preparation of the final article. The Board will con-sider articles that are already in finished form; however, these articles are subject to the Board's right, as with any article, to refuse publication or to request revision. It is advisable to have the Board first consider your proposal before it is written.

Letters to the editor policies1. Letters to the editor are invited on bar-related issues from KBA members who are licensed to

practice in Kansas.2. Letters should be no longer than 200 words and the Board of Editors reserves the right to edit

the letter for brevity and style.3. Letters must be typewritten and signed, and include the author’s KBA member number.4. No more than two letters from any individual will be published within one year.5. The editor reserves the right to choose which letters to publish. Unpublished letters cannot be

returned unless accompanied by a self-addressed, stamped envelope.6. Letters responding to a previously published letter, column, or article should address the is-

sues and not be a personal attack on the author.7. No letter shall be published that contains defamatory or obscene material, violates the Kansas

Rules of Professional Conduct, or otherwise may subject the KBA or the Board of Editors to civil or criminal liability or to embarrassment.

8. No letter shall be published that advocates or opposes a particular candidate for a political or judicial office or that contains a solicitation or advertisement for a commercial or business purpose.

http://www.ksbar.org/LRS


Positions AvailableLateral Attorney. McDowell Rice Smith & Buchanan P.C. is seeking lateral mid-senior level candidates with established practices to provide both the highest quality services to the candidate’s existing clients and depth and experience to the firm in the areas of com-mercial, business, dispute resolution, tort and professional liability litigation and/or transactional work. Must be licensed in both Missouri and Kansas. If interested, please forward introductory letter and resume for consideration to [email protected].

Lawrence Firm Seeking Attorney. Pe-tefish, Immel, Heeb & Hird LLP, a small, AV-rated firm in Lawrence, is seeking an at-torney for general practice, including family law. Please send resume to: Rick Hird, 842 Louisiana, Lawrence, KS 66044 or [email protected].

Overland Park Law Firm. Ferree, Bunn, Rundberg & Ridgway seeking attorney ex-perienced in complex Estate Planning and Probate work. Must be licensed in Missouri and Kansas. If interested please forward in-troductory letter and resume for consider-ation to [email protected].

Great Bend Firm Seeking Two Attorneys. Watkins Calcara, Chtd. is seeking applicants in two practice areas: es-tate/Medicaid planning and civil litigation. If a reasonably paced life and a collegial practice appeal to you, please inquire. Call or write Mark Rondeau, P.O. Drawer 1110, Great Bend, KS, 67530. (620) 792-8231.

Attorney ServicesAppeals. Experienced trial and appellate attorney available for state and federal ap-pellate case referrals. Licensed before state courts of Kansas and Colorado, U.S. Su-preme Court, and various circuit courts of appeals including the Tenth Circuit Court of Appeals. Listed, Who’s Who in Ameri-can Law. Work featured in The New York Times and The Washington Post. Author of numerous legal articles and Am. Jur. Trials treatise on constitutional tort law. Trial per-spective at the appellate court level. Reason-able rates, fee arrangements. Contact John B. Roesler, Attorney at Law, PO Box 604, Lawrence, Kansas 66044, (303) 929-2244, [email protected].

Contract Brief Writing. Experienced brief writer is willing to take in appellate pro-ceedings for any civil matter. Attorney has briefed approximately 40 cases before the Kansas Court of Appeals and 15 briefs be-fore the Tenth Circuit, both with excellent results. If you simply don’t have the time to help your clients after the final judgment

comes down, call or email to learn more. Jennifer Hill, (316) 263-5851 or email [email protected].

Contract Brief Writing. Former federal law clerk and Court of Appeals staff attor-ney available to handle appeals and motions.Attorney has briefed numerous appeals in both the Kansas and federal appellate courts. Contact me if you need a quality brief. Michael Jilka, (785) 218-2999 or email [email protected].

Contract Brief Writing. Former research attorney for Kansas Court of Appeals judge, former appellate division assistant district attorney in Sedgwick County. Writing back-ground includes journalism degree, Kansas City Times intern, U.D.K. beat reporter and grant writer. I have written more than 50 appeals and had approximately 30 oral arguments in the Kansas Court of Appeals and Kansas Supreme Court. I have crimi-nal and civil litigation experience, in addi-tion to civil and criminal appellate experi-ence. I welcome both civil and criminal appeals. Rachelle Worrall, (913) 397-6333, [email protected].

Estate & Trust Litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www.nicholsjilka.com.

QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more in-formation call Curtis G. Barnhill at (785) 856-1628 or email [email protected].

Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive expe-rience applying for various VA benefits, in-cluding Improved Pension. I regularly con-sult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application ser-vices, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.

Office Space AvailableMentoring and Referrals Provided. Per-fect opportunity for an attorney who would like to establish a private practice, particu-larly in domestic and/or criminal law, in a smaller town in south central Kansas. Office space, secretarial support, utilities, library, conference room, kitchen all provided. Mentoring and referrals provided if desired. Call 620-221-6330.

Office Sharing for Attorney. Located at 130 N. Cherry St., Ste. 100, in Olathe, which offers quick and easy access to the Johnson County Courthouse. New Tenant renovations that include a café style open kitchen and bar seating, a collaborative area surrounded by large bay windows, a con-ference room, and reception area. Services available include telephone, Internet, online faxing, scanner, printer, TV, and space for staff person if needed. Call Margot Pick-ering for more information at (913) 647-9899.

Office Space for Lease. Located at 3615 SW 29th St. in the Topeka Office Suites (TOS), ADA accessible. Available spaces 310 sqft and 450 sqft with options for cus-tomized space available. Features:

• Efficient Office Suites• Cisco Phones with free long distance• High-speed Internet• Copier/Printer/Fax• Quick and affordable access to your

own office space• Conference rooms for small, medi-

um and large meetings• Attractive reception areas TOS offers beautiful, full-service office

space in a contemporary, elegant office building located along the busy 29th Street Corridor. Call (785) 228-6662 for more information and tours. http://www.topekaofficesuites.com.

Law Office for sale in El Dorado, Kan-sas. The building is excellent for a solo prac-tice or two attorneys. It has been used as a law office since the 1950's. There is space above the main floor excellent for a small living space, conference area, or can be used as file storage. Newer roof, new bathroom fixtures, new carpet throughout the main office area downstairs. All desks, law books, file cabinets and book cases will be sold with the building. Only 30 minutes to Wichita. It is currently listed with SunGroup Real Estate, phone number (316) 321-6100. Photos on the website at commercialsearch.com. $65,000.00.

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may 2016 journal

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