Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 78 No. 10 Pg. 40 |
| Pages | 40 |
| Publication year | 2009 |
November 2009
Appellate Decisions
All opinion digests are available on the KBA members-only Web site at www.ksbar.org. We also send out a weekly eJournal informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your e-mail address or other contact information has changed, please contact member services at info@ksbar.org or at (785) 234-5696. You may go to the courts' Web site at www.kscourts.org for the full opinions.
SUPREME COURT
ATTORNEY DISCIPLINE
IN RE KENT O. DOCKING ORIGINAL PROCEEDING IN DISCIPLINE ONE-YEAR SUSPENSION NO. 100,519 — DECEMBER 5, 2008
FACTS: Respondent, a private practitioner from Kansas City, was previously suspended from practicing law for three months in December 2006. However, he failed to advise his clients of the suspension and failed to represent a client in a guardianship/ conservatorship matter competently despite collecting a fee of $1,000 for a termination petition. A hearing panel found clear and convincing evidence of violations of KRPCs 1.3, 1.4, 1.16, and 8.1 and SCRs 211 and 218. One mitigating factor and four aggravating factors were established.
The Disciplinary Administrator's Office recommended one-year definite suspension, while the respondent requested published censure. The hearing panel recommended nine month's definite suspension, and respondent did not file exceptions.
HELD: The undisputed findings of fact and conclusions of rules violations were adopted by the Supreme Court, and a one-year definite suspension was ordered. [Note: In May 2009, respondent voluntarily surrendered his license to practice law while five complaints alleging similar misconduct were pending, and he was disbarred.]
IN RE DOUGLAS W. DOWELL ORIGINAL PROCEEDING IN DISCIPLINE INDEFINITE SUSPENSION NO. 100,863 — DECEMBER 5, 2008
FACTS: Respondent was a private practitioner in Kansas City and was admitted in 2002. He failed to provide competent representation to several bankruptcy clients, resulting in 12 show cause orders from the court. At the disciplinary hearing respondent stipulated to violations of KRPCs 1.1, 1.3, 1.4, 1.15, and 8.4(g) and SCR 211. In mitigation, he testified he suffered from depression, may have adult attention deficit disorder, and is an alcoholic. He obtained treatment for alcoholism and participates in Alcoholics Anonymous.
The hearing panel found clear and convincing evidence of the rules violations and found three aggravating factors and five mitigating factors, including inexperience in the practice of law, to be present. Both the Disciplinary Administrator's Office and the hearing panel recommended indefinite suspension. Respondent did not file exceptions to the final hearing report.
HELD: The Supreme Court adopted the undisputed findings of fact and conclusions of rules violations and ordered indefinite suspension with a reinstatement hearing required to determine fitness to engage in the practice of law.
CIVIL
ABANDONMENT OF WATER RIGHTS FRICK FARM PROPERTIES V. KANSAS DEPARTMENT OF AGRICULTURE PAWNEE DISTRICT COURT — AFFIRMED COURT OF APPEALS — AFFIRMED NO. 98,750 — SEPTEMBER 25, 2009
FACTS: On Nov. 4, 1982, a certificate of appropriation was issued to Bernard J. Debes for Water Right, File No. 17,125 (water right), in Pawnee County. Frick Farm, owned by Kent and Karen Frick, purchased Debes' real estate, including the water right, on Nov. 22, 2002. In January 2003, Debes received notice from the Kansas Department of Agriculture, Division of Water Resources (DWR or agency) that water had not been used under the water right for three years. Debes took the letter to Frick Farm and discussed it with the Fricks. Frick Farm then submitted a water use statement. On Jan. 9, 2004, Frick Farm was sent a letter notifying it that no beneficial use of water had been reported for three years and the water right would be terminated if the period of nonuse extended to five years. The Fricks were asked to report the reasons for their nonuse of the water right, and provided a list "as a guide in reporting in your own words the specific situation for your water right(s)." The DWR instituted proceedings to determine the abandonment of water rights. The chief engineer for DWR issued an order of abandonment and termination for nonuse of water for two periods exceeding five years. Through administrative proceedings and a district court review, the termination was upheld. The Court of Appeals affirmed.
ISSUE: Abandonment of water rights
HELD: First, Court found the agency's verified report established a prima facie case that no beneficial use was made of this water right for at least five consecutive years and that due and sufficient cause did not exist to excuse this nonuse. Whether DWR could have taken a shorter route by presenting far less evidence — focused only on nonuse for five or more successive years — is a hypothetical argument because the agency did not place the initial burden on Frick Farm to establish any element required to terminate Frick Farm's water right. Court clarified that the Court of Appeals' decision should not be read as holding that DWR may satisfy its prima facie evidence requirement by submitting a verified report that simply shows five or more successive years of nonuse — and nothing more. Court rejected Frick Farm's challenge to the agency's action under K.S.A. 77-621(c) on this question. Court also rejected Frick Farm's challenges to the evidence. Court rejected Frick Farm's argument that the chief engineer erred by considering county-wide statistical data on which crops are normally irrigated when determining whether any of the reasons for nonuse enumerated in K.A.R. 5-7-1 apply. Court held this evidence was relevant, and Frick Farm had the opportunity to rebut it with evidence of its planting rates. Court held that based on the record, there was substantial competent evidence to support the finding that no water was used in 1995 or 1990.
STATUTES: K.S.A. 77-601, -621; and K.S.A. 82a-701(f), (g), -706, -718(a), (c), -732(a), -1901(a)
EMINENT DOMAIN ESTATE OF KIRKPATRICK V. CITY OF OLATHE JOHNSON DISTRICT COURT — AFFIRMED COURT OF APPEALS — REVERSED NO. 96,229 — SEPTEMBER 4, 2009
FACTS: Landowner claimed home was substantially damaged by city's construction of adjacent roundabout. District court awarded compensation to landowner under K.S.A. 26-513 and attorney fees. Court of Appeals reversed, finding mere damage to real property was not compensable under Kansas Eminent Domain Procedure Act (EDPA), K.S.A. 26-501 et seq., unless damage was necessary to complete a public improvement project. 39 Kan. App. 2d 162 (2008). Landowner's petition for review granted to clarify apparent discrepancy between EDPA and Kansas case law.
ISSUES: (1) Inverse condemnation and compensable taking and (2) attorney fees
HELD: To give full effect to K.S.A. 26-513 and other provisions of EDPA, Court disapproves of Kansas case law that fails to take into account the statutory requirement that just compensation be provided for property damaged for public use, as required by plain language of the statute. For damage to real estate to be compensable under K.S.A. 26-513(a) and other provisions of EDPA, damage must be substantial and must be the planned or inevitable result of government action undertaken for public benefit. Damage that is tangential or consequential to a government action is more appropriately addressed in realm of tort law. Here, district court correctly determined the city was required to provide just compensation for damage to landowner's property.
District court's award of attorney fees and expenses is affirmed. When public improvement projects are funded at least in part by federal government, the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq. (2006), requires the condemning state, state agency, or political subdivision to make satisfactory assurances to federal government that condemning authority will reimburse property owners their attorney and litigation expenses associated with successful inverse condemnation claims. This agreement, evidenced by the subsequent acceptance of federal funding, gives Kansas courts authority to award attorney fees and litigation costs in such actions.
STATUTES: 42 U.S.C. §§ 4601 et seq., 4653, 4654(c), and 4655(a)(2) (2006); K.S.A. 26-501 et seq., -513, -513(a), -513(d), -513(d) subsections (7), (8), (10), (12), (14); K.S.A. 58-3501 et seq., -3502, -3502(4), -3506, K.S.A. 60-513(a)(4); and K.S.A. 75-6101 et seq.
HABEAS CORPUS JOHNSON V. STATE PAWNEE DISTRICT COURT — AFFIRMED NO. 100,523 — SEPTEMBER 11, 2009
FACTS. Johnson and Collins (petitioners) filed K.S.A. 60-1501 petition in district court, seeking release from Social and Rehabilitation Services' custody and Sexual Predator Treatment Program (SPTP) at Larned State Hospital, claiming treatment provided is inadequate to cure and was thus punitive as applied. District court summarily dismissed the petition. Petitioners' appeal transferred to Supreme Court.
ISSUE: Habeas corpus challenge sexual predator treatment program
HELD: A person confined in Kansas' SPTP is included within purview K.S.A. 60-1501, and may bring a habeas corpus petition alleging due process violations in being denied liberty interest to be free from physical restraint. Standards courts have applied to evaluate constitutionality of civil commitment are reviewed. Here, petitioners failed to allege conduct shocking to the conscience, and cannot establish a continuing constitutional deprivation regarding efficacy of the program because they lack standing to raise such a claim as applied to others, and because they raise only a hypothetical question of whether the treatment program could be...
To continue reading
Request your trial