Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 78 No. 8 Pg. 34 |
| Pages | 34 |
| Publication year | 2009 |
Supreme Court
Civil
CITY ORDINANCE, INITIATIVE, AND REFERENDUM MCALISTER V. CITY OF FAIRWAY JOHNSON DISTRICT COURT - AFFIRMED NOS. 99,808 AND 99,809 - JULY 24, 2009
FACTS: Beginning in 2001, the governing body for the city of Fairway (City) began discussing the need for a new city hall building and those discussions spanned the next few years. James McAlister, Klaus Ulrich, and James Kernell are residents of the City. They prepared two proposed city ordinances and organized supporting petition drives in an effort to invoke the statutory initiative and referendum process set out in K.S.A. 12-3013. It is undisputed the required petitions accompanying these proposed ordinances were in proper form and carry sufficient genuine signatures from qualified local electors. The first proposed ordinance sought to restrict the City's ability to relocate its city hall facilities to certain locations within the City's boundaries. The second proposes to not allow the use of rezoning, eminent domain, and condemnation, as well as restricting commercial, business, apartment, condominium, or mixed-use development to certain locations within the City. The City refused to adopt the ordinances or advance them for public vote on the basis of K.S.A. 12-3013(e)(1), which states: "The provisions of this section shall not apply to: (1) administrative ordinances." On crossmotions for summary judgment, the district court agreed with the City and determined both proposed ordinances were administrative.
ISSUES: (1) City ordinance and (2) initiative and referendum
HELD: Court found the appeal was not moot even though the City had entered into a lease agreement locating its city hall facilities outside the area proposed to be restricted by the petitions. Court espoused the guidelines for determining whether an ordinance is legislative or administrative. In weighing the four guidelines to the City Hall Petition, Court found it was principally executive or administrative in nature. Court did so even though it was legislative in character under three of the four guidelines. This is because its prohibition against locating the city hall facilities is so extensive that it makes unavailable more than 90 percent of the City's geographic territory. This has the practical effect of dictating where the City locates its city hall facilities. Such a restriction necessarily limits and intrudes to a substantial extent into areas of city administration requiring specialized knowledge about city affairs, regulatory requirements, long-range planning, and financing. These are all subject matters typically left to city administrators. Court found this intrusion into the efficient administration of the City's operations is so overreaching that it outweighs the three guidelines that arguably appear to have more legislative character to them. In applying the four guidelines to the Commercial Development Petition, Court found it was principally executive or administrative in nature. Court did so because: (1) Its broad restrictions pervasively intrude into various matters of statewide concern by attempting to impact rezoning and eminent domain authority by the City and other entities that have been delegated that authority by the Legislature; and (2) the sweeping scope of the restrictions covering more than 90 percent of the City's geographic area has the effect of permanently locking the City into its current zoning plan, which is a decision requiring specialized knowledge and training to fully comprehend its impact.
STATUTES: K.S.A. 10-1101; K.S.A. 12-1736, -1737, -1740, -1749, -3013, -3018; K.S.A. 26-201, -501, -503, -504, -507; K.S.A. 55-1205; K.S.A. 66-911; K.S.A. 68-1903; K.S.A. 72-8212a; and K.S.A. 74-99d08
MENTAL HEALTH IN RE CARE AND TREATMENT OF COLT SHAWNEE DISTRICT COURT - AFFIRMED COURT OF APPEALS - AFFIRMED NO. 98,105 - JULY 10, 2009
FACTS: Colt challenged his indefinite civil commitment as a sexually violent predator under K.S.A. 59-29a01 et seq. On appeal he argued: (1) his jury should not have been permitted to consider evidence of his prior crimes, particularly those having no sexual component; (2) state's expert based his opinion on inadmissible evidence in violation of K.S.A. 60-456(b); and (3) insufficient evidence supported the jury's verdict. Court of Appeals affirmed, 39 Kan. App. 2d 643 (2008). Colt's petition for review granted.
ISSUES: (1) Admission of evidence of prior crimes, (2) K.S.A. 60-456(b), and (3) sufficiency of the evidence
HELD: Issue controlled by decision in In re Care and Treatment of Miller, decided by Kansas Supreme Court this same date. K.S.A. 59-29a03 does not explicitly limit types of offenses about which evidence can be admitted in a sexually violent predator commitment proceeding. On facts in this case, district judge did not err in rejecting Colt's effort to exclude proof of his prior crimes on relevance grounds. On facts of this case, admission of all other crimes or civil wrongs did not undermine constitutionality of K.S.A. 29-59101 et seq. Double jeopardy doctrine does not apply to this civil proceeding.
On facts of this case, Colt's stipulation dispensed with usual prerequisite of admission of records relied upon by an expert, pursuant to K.S.A. 60-456(b).
Sufficient evidence supported jury's determination.
DISSENT (Rosen, J., joined by Standridge, J.): Dissents for reasons stated in Miller.
STATUTES: K.S.A. 59-29a01 et seq., -29a02(a), -29a02(e), -29a03, -29a03(a)(1)-(4), -29a07; and K.S.A. 60-455, -456(b), -460(r)
MENTAL HEALTH IN RE CARE AND TREATMENT OF MILLER JOHNSON DISTRICT COURT - AFFIRMED COURT OF APPEALS - AFFIRMED NO. 97,273 - JULY 10, 2009
FACTS: Miller challenged his indefinite civil commitment as a sexually violent predator under K.S.A. 59-29a01 et seq. (Act). On appeal he argued the district court erred in denying Miller's motion to stipulate to his 1980 sex crime conviction. He claimed district court erred in admitting evidence of Miller's other prior crimes or civil wrongs, including those having no sexual component, were cumulative, or were dismissed for lack of evidence or misidentification. He also claimed that after jury determined Miller qualified as a sexually violent predator under the Act, district court erred in entering judgment when Miller had never been diagnosed with a sex-related abnormality or disorder. Court of Appeals affirmed, 39 Kan. App. 2d 905 (2008). Miller's petition for review granted.
ISSUES: (1) Motion to stipulate, (2) evidence of other prior crimes or civil wrongs - K.S.A. 60-455, (3) evidence of other prior crimes or civil wrongs "” nonsexual, (4) evidence of other prior crimes or civil wrongs - cumulative, (5) evidence of other prior crimes or civil wrongs - not proved, (6) general rather than sex-related abnormality or disorder
HELD: No abuse of discretion in district court's denial of Miller's motion to stipulate to prior sexual offense. The evidence was neither unduly prejudicial nor cumulative.
Neither K.S.A. 60-455 nor State v. Gunby, 282 Kan. 39 (2006), governs admission of prior crimes evidence in sexually violent predator commitment proceedings. Act requires evidence of a sex offender's propensity to commit sexually violent acts in the future.
Issue of first impression in Kansas. Relevance to be determined in each case by particular facts of each case, by how those facts fit together, by the diagnosis or competing diagnoses, by how that diagnosis or diagnoses affect the expert opinion or opinions, and by the jury focus outlined in the Act. Under facts of this case, Miller's nonsexual prior crimes and civil wrongs were both probative and material, and were not unduly prejudicial.
On facts of this case, no abuse of discretion to allow expert witness testimony about Miller's burglary conviction, in addition to testimony from burglary victim.
Uncharged prior crimes may be admissible against a respondent in a sexually violent predator commitment proceeding. On facts of this case, evidence of a prior charge that was dismissed for lack of evidence or misidentification did not mislead the jury, and misdirection of the jury's attention was temporary and corrected before the jury began to deliberate.
K.S.A. 59-29a02 does not define mental abnormality as a sex-related disorder, and the statutory definition does not offend due process.
DISSENT (Rosen, J., joined by Standridge, J.): Disagrees with majority's holding that prior conduct or allegations, even dismissed charges of criminal wrongdoing proven to be perpetrated by someone other than the respondent, are relevant and admissible when court or jury is determining whether a person is a sexually violent predator. Majority's holding undermines procedural safeguards enacted by Legislature concerning involuntary commitment proceedings, and ignores core purpose and underlying rational of 60-455.
STATUTES: K.S.A. 59-29a01 et. seq., -29a02, -29a02(c), -29a07, -29b59, -29b66, and K.S.A. 60-455
OFFENDER REGISTRATION AND FAILURE TO REPORT IN RE C.P.W. ELLSWORTH DISTRICT COURT - APPEAL SUSTAINED NO. 101,017 - JULY 24, 2009
FACTS: C.P.W. is a registered sex offender. C.P.W. was charged with failing to report in person to the office of the Ellsworth County Sheriff to have his photograph taken during the month of his birthday. C.P.W. did not appear in November 2006. Rather, he appeared at the sheriff's office six months later in May 2007 and complied with the reporting requirements. The Kansas Legislature added more reporting constraints effective July 2006. The district court found this violation was a specific intent crime and C.P.W. had no specific intent to violate the law as charged in the complaint. The district court concluded C.P.W. was not guilty and acquitted him. The state appealed a question reserved.
ISSUES...
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