Appellate Decisions
| Publication year | 2013 |
| Pages | 32 |
November, 2013
Appellate Decisions
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Supreme Court
Attorney Discipline
ORDER OF DISBARMENT IN RE QUENTIN JOHN BOONE, NO. 20413 — SEPTEMBER 20, 2013
FACTS: In a letter signed on September 3, 2013, addressed to the Clerk of the Appellate Courts, respondent Boone, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, complaints had been docketed by the disciplinary administrator's office in accordance with Supreme Court Rule 217 (2012 Kan. Ct. R. Annot. 389). The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 1.3 (diligence) (2012 Kan. Ct. R. Annot. 454); 1.4 (communication) (2012 Kan. Ct. R. Annot. 473); 1.5 (fees) (2012 Kan. Ct. R. An-not. 492); and 8.4(g) (misconduct) (2012 Kan. Ct. R. Annot. 643).
HELD: Court, having examined the files of the Office of the Disciplinary Administrator, finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred. Court ordered the Clerk of the Appellate Courts to strike the name of Quentin John Boone from the roll of attorneys licensed to practice law in Kansas.
ORDER OF REINSTATEMENT IN RE WILLIAM J. HUNSAKER NO. 102,411 — SEPTEMBER 24, 2013
FACTS: On October 9, 2009, the Court suspended the respondent, Hunsaker, from the practice of law in Kansas for a period of 90 days. See In re Hunsaker, 289 Kan. 828, 217 P.3d 962 (2009). Before reinstatement, the respondent was required to pay the costs of the disciplinary action. On July 18, 2013, the respondent filed a petition with the Court for reinstatement to the practice of law in Kansas. The disciplinary administrator affirmed that the respondent paid the costs of the disciplinary action.
HELD: Court, after carefully considering the record, granted the respondent's petition for reinstatement. Court ordered that the respondent be reinstated to the practice of law in Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent complied with the annual continuing legal education requirements and paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the clerk was directed to enter respondent's name upon the roster of attorneys engaged in the practice of law in Kansas.
ORDER OF DISBARMENT IN RE MICHAEL CLAY SCHNITTKER NO. 109,712 — OCTOBER 11, 2013
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Schnittker, of Overland Park, an attorney admitted to the practice of law in Kansas in 1994. When Schnittker began having financial difficulties, he started depositing earned attorney fees paid by clients into his personal account, rather than his firm's operating account. This went on for three years. When confronted, Schnittker liquidated his personal IRA and made full restitution.
DISCIPLINARY ADMINISTRATOR: On January 3, 2013, the Office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on January 24, 2013. At the hearing on the formal complaint, the deputy disciplinary administrator argued that disbarment is the appropriate discipline to be imposed in this case. However, the deputy disciplinary administrator recognized the significant mitigating factors presented in this case and recommended that the respondent be suspended from the practice of law for an indefinite period of time.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 8, 2013, when the respondent was personally present. The hearing panel determined that respondent violated KRPC 8.4(b) (2012 Kan. Ct. R. Annot. 643) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving misrepresentation). The respondent argued that the hearing panel should recommend to the Supreme Court that the respondent be censured and that the censure be published in the Kansas Reports. The hearing panel stated that the respondent's conduct warranted disbarment-he intentionally took money that did not belong to him. However, the respondent presented persuasive mitigating evidence- the respondent admitted his wrongdoing, he repaid Mr. Sullivan within six weeks of the discovery of the theft, and [he] had taken full responsibility for his actions. The hearing panel was persuaded that a lesser level of discipline is appropriate in this case. Based upon the findings of fact, conclusions of law, the aggravating factors, and the Standards listed above, the hearing panel unanimously recommended that the respondent's license to practice law be indefinitely suspended from the practice of law.
HELD: Court stated that it did not take the recommendation of the hearing panel lightly. Court carefully considered the sanction recommendation of the hearing panel, as well as giving due regard to those of the disciplinary administrator. However, Court held the respondent's request of published censure demonstrated that he does not appreciate the gravity of his misconduct. While participating in the attorney diversion program for an unrelated disciplinary violation, he was engaged in the misconduct in this case. The respondent systematically stole more than $150,000 that belonged to his law firm during a period lasting more than three years and only ceased his thievery upon being caught. His mitigating circumstance that he violated no duty to his clients does little to counter the injury or potential injury to the public, the legal system, or the profession. Further, by relying on his law partner's forgiveness, the respondent seems to imply that a benevolent crime victim's wishes should somehow supercede the imposition of a sanction typically imposed and warranted for such serious, flagrant misconduct. The Court stated that the respondent's conduct in and of itself warranted disbarment. Based upon the consideration of the entire record, the arguments of counsel, and statements of the respondent, the Court concluded that the appropriate discipline in this case is disbarment from the practice of law in this state. A minority of the court would follow the hearing panel's recommendation of indefinite suspension.
CIVIL
COAL-FIRED POWER PLANT, KANSAS AIR QUALITY ACT, PERMIT, AND STANDING SIERRA CLUB V ROBERT MOSER, KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT ET AL. KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT — REVERSED AND REMANDED NO. 105,493 — OCTOBER 4, 2013
FACTS: Environmental organization Sierra Club sought judicial review of the decision of the secretary of the Kansas Department of Health and Environment (KDHE) to issue an air emission source construction permit to Sunflower Electric Power Corp. (Sunflower) for the construction of an 895-megawatt coal-fired power plant, referred to as Holcomb 2, at the site of Sunflower's existing plant in Holcomb, Holcomb 1. Sierra Club raises four issues and contends the permit fails to comply with the requirements of the federal Clean Air Act (CAA), 42 U.S.C. § 7401 et seq. (2006); implementing federal regulations; the Kansas Air Quality Act (KAQA), K.S.A. 65-3001 et seq.; and applicable Kansas Administrative Regulations, K.A.R. 28-19-1 et seq. The KDHE questions whether Sierra Club has standing to challenge the permit.
ISSUES: (1) Coal-fired power plant, (2) Kansas Air Quality Act, (3) permit, and (4) standing
HELD: Court held that Sierra Club had standing to bring this action and has established that the KDHE erroneously interpreted and applied the CAA and the KAQA when it failed to apply the regulations of the federal Environmental Protection Agency (EPA) regarding one-hour emission limits for nitrogen dioxide and sulfur dioxide during the Holcomb 2 permitting process. These EPA regulations became effective before the Holcomb 2 permit was issued, and Court held that the CAA, KAQA, and implementing regulations required the KDHE to apply the regulations during the permitting process. Court reversed the KDHE's action of issuing the permit and remanded this matter to the KDHE. Court also held Sierra Club's issue of whether the KDHE erred in its application of hazardous air pollution emission requirements is rendered moot by this decision to remand the Holcomb 2 permit because the EPA has adopted new regulations that must be applied on remand. Court also rejected Sierra Club's argument that the KDHE erred in its analysis of the best available control technology (BACT) and that the procedure followed by the KDHE violated the CAA.
STATUTES: K.S.A. 65-3001, -3002(j), -3005, -3008a(b), -3012, -3018(c), -3029; and K.S.A. 77-601, -602(f)(2), -611, -618, -619, -621(c), (d)
OIL AND GAS AND UNITIZATION THOROUGHBRED ASSOCIATES LLC ET AL. V KANSAS CITY ROYALTY CO. LLC ET AL. COMANCHE DISTRICT COURT — AFFIRMED IN PART, REVERSED IN PART, AND REMANDED COURT OF APPEALS — AFFIRMED IN PART AND REVERSED IN PART NO. 102,598 — SEPTEMBER 20, 2013
FACTS...
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