Civil Code and Time Computation Changes Effective July 1
| Publication year | 2010 |
| Pages | 20 |
By James Concannon
I. Introduction
If my former Civil Procedure students remember nothing else from my course, they will remember my oft-repeated admonition, "Don't think great thoughts! Read the rule!" That admonition is of renewed importance after the passage of 2010 House Bill 2656, which amends every section of the first three articles of the Kansas Code of Civil Procedure, effective July 1, 2010.
HB 2656 is the product of two years of study by the Kansas Judicial Council's Civil Code Advisory Committee (Committee). By adopting it, Kansas becomes the first state to conform the text of its civil code to the restyled Federal Rules of Civil Procedure, which became effective December 1, 2007. Kansas also becomes the first state to conform its statutes to the time computation amendments of the Federal Rules, which became effective December 1, 2009. These changes affect not only the civil code but also the probate, juvenile, and criminal codes and other sections setting time limits. In addition, HB 2656 adopts significant substantive amendments, resulting from the first comprehensive review of the Kansas civil code since another two-year study led to amendments of 33 sections in Chapter 60 in 1997.1 The substantive changes range from adopting some earlier Federal Rules amendments that Kansas had not adopted and separate 2009 amendments that did not involve time computation to correcting drafting errors in sections that are unique to Kansas and adopting improved procedures, such as the Uniform Interstate Depositions and Discovery Act. The text of the enrolled bill, including conference committee amendments, is available on the Kansas Legislature's website.[2]
This article discusses by topic the most important changes HB 2656 makes. The Civil Code Advisory Committee's report includes detailed section-by-section comments that describe each change. The report is available on the Judicial Council website.[3] The comments incorporate pertinent comments of the Federal Advisory Committee on Civil Rules. Practitioners should consult the report for guidance on specific issues of interpretation that are too narrow to be included in this article. The report also identifies instances in which Kansas law was left unchanged even though it deviates from the Federal Rules.
II. The Style Project
The Federal Advisory Committee rewrote and reformatted each Federal Rule to put it, in essence, in plain English and eliminate ambiguities, inconsistency, and redundancy. The changes were meant to be stylistic only and not to alter substance, but in some instances new language was used to make clear the result the original drafters intended. For sections of the Kansas code that tracked the text of the former Federal Rules, HB 2656 incorporates the federal style changes. Kansas provisions having no counterpart in the Federal Rules were restyled using styling principles similar to those used in the Federal Rules project. The uscourts.gov website sets forth in detail the drafting principles used in the federal style project.[4]
Some style changes to the Federal Rules will not appear in the Kansas statute book. To improve readability, the Federal Rules indent subdivisions, use commas before the last item of a series, and — when they promote clarity — use dashes rather than commas. These formatting devices were removed by the Revisor of Statutes because they violated the Revisor's style manual, for example, its prohibition of use of dashes, and because the narrow columns in the Kansas Statutes Annotated don't accommodate multiple indentations.
The Chapter 60 amendments to Articles 1-3 vary from the Revisor's drafting principles in one respect. They follow the Federal Rules by eliminating use of the word "shall."[5] The Federal Rules Advisory Committee described the word as "inherently ambiguous" because it "can mean "˜must,' "˜may,' or something else, depending on context."[6] Likewise, Kansas courts "have read "˜shall' to mean "˜may' where the context requires."[7] The Kansas Supreme Court uses a four-factor test to determine whether "shall" is mandatory or directory.[8] The former Federal Rules contained almost 500 "shalls." Using "context and established interpretation"[9] the federal committee changed "shall" to "must" three-fourths of the time, but changed it twice to "will," 14 times to "should," 25 times to "may," and 50 times to a present-tense verb. In another 35 instances, the word was eliminated altogether through tightened drafting.[10]
The Kansas Civil Code Committee analyzed Kansas provisions that have no federal counterparts and changed "shall" to "may" in nine sections, to "should" in three sections, and to "must" in the remaining sections. The committee changed one "may" to "must," in K.S.A. 60-228,[11] mandating that a deposition "must be taken" before a person authorized by Kansas law to administer oaths, conforming Kansas law to the Federal Rule. The parties retain the authority under K.S.A. 60-229 to stipulate that the deposition may be taken before any person.
While Federal Rules drafters ruthlessly purged "shalls" not only from the Civil Code but also from the Rules of Appellate Procedure and Criminal Procedure, a single "shall" soon may be reintroduced into Rule 56. As restyled, current Rule 56(c) provides that summary judgment "should be rendered" if the record shows there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. HB 2656 adopts this formulation in amended K.S.A. 60-256(c).[12] A pending amendment to Rule 56(c), scheduled to take effect December 1, 2010, unless disapproved by Congress, would restore the pre-2007 language providing that summary judgment "shall be rendered" in those circumstances.
The Federal Advisory Committee's report concluded that "shall" in Rule 56(c) had become a term of art that had evolved through case law interpretation and that use of any other term risked making a substantive change. In 2007, the Committee chose "should" rather than "must" or "may," relying on
a Supreme Court decision[13] and a well-known treatise for the proposition that "˜should' better reflects the trial court's seldom-exercised discretion to deny summary judgment even when there is no genuine dispute as to any material fact and the movant seems entitled to judgment as a matter of law.[14]
However, supporters of "must" can point to language in another U.S. Supreme Court decision[15] and the seemingly plain language directing summary judgment when the movant is "entitled" to judgment as a matter of law. Policy arguments support both views. On the one hand, "the importance of summary judgment as a protection against the burdens imposed by unnecessary trial, and also against the shift of settlement that follow denial of summary judgment"[16] supports use of "must." On the other hand, arguments that a trial judge "may have good grounds for suspecting that a trial will test evidence in ways not possible on a paper record" and that "a trial may consume much less court time than would be needed to determine whether summary judgment can be granted"[17] support the more flexible "should." No Kansas appellate decisions discuss this issue. The Kansas Civil Code Committee elected to defer consideration of the proposed Federal amendment until it is certain that it will take effect.
III. New Time Computation Rules
HB 2656 conforms the time computation rules in K.S.A. 60-20618 with the 2009 amendments to Federal Rule 6. The changes were summarized in an article in the January issue of this Journal.19 For example, under former law, a different method of counting days was used when the time to act was less than 11 days from a triggering event than when the time was 11 days or more. When the time was less than 11 days, intermediate weekends and holidays were not counted. The rule now takes a "days are days" approach, counting every day even for short time limits. This change is not meant to make short periods of time even shorter. To avoid that result, Federal Rules drafters examined each time period in the Federal Rules and extended short periods to act from, for example, five to seven days and 10 to 14 days to account for the change in the counting rule. They also extended periods of 20 days to 21 days, to reduce the instances in which the last day of the period falls on a weekend, which has its own special counting rule. They made no changes in time periods of 30 days or more. HB 2656 makes the same changes to Articles 1-3 of the Kansas Code of Civil Procedure.
In a few instances, the amended Federal Rules extend time periods significantly, based on a policy judgment that former periods were too short. For example, the federal Advisory Committee concluded that in many cases it is not possible to prepare a satisfactory post-judgment motion for new trial or to alter or amend judgment under Rule 59, for judgment as a matter of law under Rule 50, or to alter or amend findings under Rule 52 within the 10 days allowed by the former rules. Rule 6(b) and K.S.A. 60-206(b) prohibit a trial judge from extending the time to file these motions, in part because the time to file notice of appeal from a judgment does not begin to run until a timely motion under any of these rules is decided. Because granting a trial judge discretion to grant extensions of time to file these post-trial motions would introduce uncertainty into the calculation of the time to appeal, the Federal Advisory Committee elected to extend the time for filing these motions from 10 to 28 days. HB 2656 conforms K.S.A. 60-259, 60-250 and 60-252 with these rule change.[20]
A party will have an incentive to file these post-judgment motions well before the deadline if the party needs to invoke the trial court's authority in K.S.A. 60-262(b)...
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