Appellate Decisions
| Publication year | 2011 |
| Pages | 44 |
| Citation | Vol. 80 No. 9 Pg. 44 |
Supreme Court
Attorney Discipline
SIX-MONTH SUSPENSION IN RE MICHAEL E. FOSTER ORIGINAL PROCEEDING IN DISCIPLINE NO. 105,458 - AUGUST 19, 2011
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against Michael E. Foster, of Wichita, an attorney admitted to the practice of law in Kansas in 1973. Foster's disciplinary proceedings involved probate matters of one of his clients.
DISCIPLINARY ADMINISTRATOR: At the time of the hearing, the deputy disciplinary administrator made no specific recommendation for discipline. Instead, the deputy disciplinary administrator informed the Hearing Panel that she wished to wait until the time of the oral argument before the Kansas Supreme Court to make a recommendation. The deputy disciplinary administrator argued that because the respondent had not completely put his plan of probation into effect, she was not able to join the respondent's request that he be placed on probation, subject to the terms and conditions of his proposed plan.
HEARING PANEL: The Hearing Panel determined that respondent violated KRPCs 1.1 (2010 Kan. Ct. R. Annot. 406) (competence); 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); and 3.2 (2010 Kan. Ct. R. Annot. 539) (expediting litigation).
HELD: Court held the evidence presented to the Hearing Panel established the charged misconduct of Foster by clear and convincing evidence and supported the panel's conclusions of law. Court stated reinstatement is conditioned upon respondent demonstrating that he has addressed his depressive disorder, establishing that he is in good mental health and fit to resume the practice of law, and complied with the conditions previously agreed upon with the disciplinary administrator's office.
Civil
ADMINISTRATIVE AGENCY REVIEW AND JURISDICTION BARLETT GRAIN CO. L.P. V KANSAS CORPORATION COMMISSION SCOTT DISTRICT COURT-APPEAL DISMISSED NO. 103,297-AUGUST5, 2011
FACTS: The KCC issued a show cause order alleging Bartlett aided and abetted unauthorized motor carriers. Specifically, the order alleged Bartlett solicited three for-hire motor carriers who violated motor carrier safety laws by operating farm-registered vehicles in interstate commerce, operating the vehicles over the gross weight allowed in Kansas, lacking a U.S. Department of Transportation number, lacking medical examiner's certifications, lacking commercial driver's licenses, and failing to comply with Unified Carrier Registration Agreement requirements. The order further alleged that each violation was intentional and could subject Bartlett to a fine of up to $5,000 per violation. Bartlett answered the show cause order, contesting the KCC's jurisdiction over it with respect to this matter and denying the alleged violations. At a prehearing conference, Bartlett argued the KCC lacked jurisdiction with respect to its hiring of third-party motor carriers. The KCC found it had authority and jurisdiction over Bartlett to proceed. The district court concluded the KCC had "jurisdiction to proceed with civil penalties under "˜aiding and abetting' as the facts may justify."
ISSUES: (1) Administrative agency review and (2) jurisdiction
HELD: Court held the appeal was an improper interlocutory appeal. Court found under the facts of this case, the appeal must be dismissed for lack of jurisdiction when (1) the appellant prematurely sought review of the agency's jurisdictional decision before the agency considered the underlying substantive allegations against the appellant and (2) the appellant neither sought interlocutory review under K.S.A. 77-608 nor established its entitlement to do so.
STATUTES: K.S.A. 20-3018; K.S.A. 66-118a, -1,129; and K.S.A. 77-607, -608, -609
CHILD CUSTODY AND RELIGIOUS BELIEFS MONICA HARRISON VADIEL TAUHEED SEDGWICK DISTRICT COURT-AFFIRMED COURT OF APPEALS - AFFIRMED NO. 102,214 - AUGUST5, 2011
FACTS: When child was 4 years old, Adiel admitted paternity and sought primary residential custody of the child. Monica granted temporary custody pending the district judge's initial residential custody determination. District court found both parents loving and caring, but shared custody not possible due to geographic distances. Primary residential custody of child awarded to Monica. Adiel appealed, claiming district court treated action as modification of prior child custody order rather than an initial custody determination, and refused to consider Monica's attitude about potential necessary medical treatment of the child which would violate Monica's religious beliefs. Court of Appeals affirmed, 44 Kan. App. 2d 235 (2010), finding Kansas law prohibits consideration of parent's religious beliefs in custody determination absent threshold showing of actual harm to health or welfare of child caused by those religious beliefs and practices. Dissent argued that no showing of "actual harm" is required, and that "impact" on best interests of child is sufficient. Petition for review granted.
ISSUE: Consideration of parent's religious beliefs and practices in custody determination based on best interests of child
HELD: District judge employed correct best interests of the child legal standard in initial custody determination. Judges who preside over child custody disputes must differentiate between parent's religious beliefs on one hand and religiously motivated actions or conduct with implications for paramount best interest of the child on the other. Disapproval of mere belief or non-belief cannot be considered in custody determination, but consideration of religiously motivated behavior with impact on child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law. Judge may not speculate about behavior that a parent's religious beliefs may motivate in the future, and may not weigh the merit of one parent's religious belief against the other's. Here, district court applied the correct legal standard in considering ways current religiously motivated conduct affected the child's best interests.
STATUTE: K.S.A. 60-1610(a)(2), -1610(a)(2)(A), -1610(a)(3), -1610(a)(3)(B), -1610(a)(3)(C)
DUI AND PRELIMINARY BREATH TEST DANIEL STEPHEN ALLENIIV KANSAS DEPARTMENT OF REVENUE ELLSWORTH DISTRICT COURT - REVERSED AND REMANDED NO. 102,134 - AUGUST5, 2011
FACTS: Allen was pulled over for multiple traffic violations and failed several field sobriety tests. Allen agreed to a preliminary breath test and failed the test with a 0.087 result. The Kansas Department of Revenue issued an administrative order suspending Allen's driving privileges. Allen appealed the administrative action to the district court. The district court reversed the administrative order, holding there were no reasonable grounds for the officer to administer an evidentiary breath test under K.S.A. 2007 Supp. 8-1001. Additionally, the district court found K.S.A. 2007 Supp. 8-1012 unconstitutional both on its face and as applied in this case. The district court ruled that the PBT result could not be used to determine if there were reasonable grounds to request the evidentiary breath test.
ISSUES: (1) DUI and (2) preliminary breath test
HELD: Court held that under the facts of this case, the trooper had good reason to "believe that guilt [was] more than a possibility" and that he possessed reasonable grounds to request a breath test under K.S.A. 2007 Supp. 8-1001 without the results of the PBT. Court found it was unnecessary to address Allen's constitutional challenge to K.S.A. 2007 Supp. 8-1012 because the trooper possessed reasonable grounds for requesting the breath test.
DISSENT: Justice Johnson dissented and would defer to the district court's weighing of the evidence and affirm its determination that the trooper did not possess reasonable grounds to request a breath test without the PBT results.
STATUTES: K.S.A. 2007 Supp. 8-1001, -1012; K.S.A. 41-727(a); and K.S.A. 60-2101(b)
HABEAS CORPUS WIMBLEY V. STATE SEDGWICK DISTRICT COURT-AFFIRMED COURT OF APPEALS - REVERSED NO. 101,595 - AUGUST 12, 2011
FACTS: Wimbley's conviction for premeditated first-degree murder and criminal possession of firearm affirmed on direct appeal. 271 Kan. 843 (2001) (Wimbley I). In unpublished opinion, Court of Appeals affirmed district court's denial of ineffective assistance of counsel claims raised in K.S.A. 60-1507 motion (Wimbley II). Four years later, Wimbley filed second 1507 motion, challenging prosecutor's statement that premeditation can occur in an instant and cited intervening change in law by Supreme Court's decision in State v. Holmes, 272 Kan. 491 (2001, decided four months after Wimb-ley II. Wimbley also speculated DNA on murder weapon might be exculpatory. District court denied the motion as successive. Court of Appeals reversed in unpublished opinion (Wimbley III), finding 1507 second motion was not procedurally barred because Holmes provided exceptional circumstances and triggered manifest injustice exception. Instead of remand for reconsideration of second 1507 motion, Court of Appeals found Wimbley was entitled to relief as matter of law, reversed the convictions, and remanded for new trial in which district court was to conduct comprehensive hearing on questions surrounding DNA evidence. Review granted.
ISSUES: (1) Intervening change in the law and (2) DNA retesting HELD: Holding in Holmes is analyzed and clarified. Holmes did not change legal definition of premeditation and did not create new structural rule. Case simply reiterated that prosecutor's statement that premeditation can occur in an instant is misstatement of law, and that if such error denied the defendant a fair trial, reversal for new trial is required. Wimbley could have...
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