Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 82 No. 1 Pg. 41 |
| Pages | 41 |
| Publication year | 2013 |
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Supreme Court
Attorney Discipline
DISBARMENT IN RE MATTHEW M. DIAZ ORIGINAL PROCEEDING IN DISCIPLINE NO. 108,169 — NOVEMBER 21, 2012
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Matthew M. Diaz, of Forest Hills, N.Y., an attorney admitted to the practice of law in Kansas in 1995. On October 20, 2010, the Office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Diaz was convicted in court-marshal proceedings in the U.S. Navy on May 17, 2007, for (1) violating a lawful general regulation by wrongfully mailing classified secret information, (2) wrongfully and dishonorably transmitting classified documents to an unauthorized individual, (3) knowingly and willfully communicating classified secret information relative to national defense to a person not entitled to receive the information that could be used to injure the United States or to the advantage of a foreign nation, and (4) knowingly removing materials containing classified information without authority and with the intention to retain such materials at an unauthorized location. Diaz's convictions were the result of his release of information concerning the detainees at Guantanamo Bay, Cuba, for possible habeas corpus proceedings.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 19, 2011, where the respondent was personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 1.6(a) (2011 Kan. Ct. R. Annot. 480) (confidentiality) and 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer). The hearing panel unanimously recommended that the respondent be suspended for a period of three years.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that, based upon the respondent's convictions, the conclusions of the judge advocate general, and the conclusions of the military courts, the respondent be disbarred.
HELD: Court held the evidence before the hearing panel established the charged misconduct of the respondent by clear and convincing evidence and supported the panel's conclusions of law. Court agreed with the U.S. Navy-Marine Corps Court of Criminal Appeals that he negatively impacted public trust in the fidelity of our military personnel but, more fundamentally, the conduct strikes directly at core democratic processes and that one who elects to serve mankind by taking the law into his own hands thereby demonstrates his conviction that his own ability to determine policy is superior to democratic decision making. Court stated the disclosure of the classified information about which team was assigned to each detainee could increase the chances of their individual members being publicly identified. Given the nature of their work, such identification could put them at personal risk by any Guantanamo Bay detainee's supporters around the world. Court held that based upon the number and nature of respondent's violations and criminal convictions, the conclusions of the military courts, the decision of the Judge Advocate General permanently revoking respondent's certification as a lawyer in the naval service, respondent's admitted selfish reasons for the clandestine disclosure of classified information, and the ethics standards, disbarment was the appropriate sanction. A minority of the Court would impose the lesser sanction of indefinite suspension.
ORDER OF REINSTATEMENT IN RE MICHAEL A. MILLETT NO. 104,199 — NOVEMBER 14, 2012
FACTS: On October 15, 2010, the Kansas Supreme Court suspended the respondent, Michael A. Millett, from the practice of law in Kansas for a period of two years. See In re Millett, 291 Kan. 369, 241 P.3d 35 (2010). Before reinstatement, the respondent was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379), and comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380). On October 15, 2012, the respondent filed a petition with this court for reinstatement to the practice of law in Kansas.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator affirmed that the respondent met all requirements set forth by the court.
HELD: The Court, after carefully considering the record, granted the respondent's petition for reinstatement. When the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the clerk of the appellate courts and the Kansas Continuing Legal Education Commission, the clerk is directed to enter respondent's name upon the roster of attorneys engaged in the practice of law in Kansas.
Civil
CHILD SUPPORT IN RE MARRIAGE OF BROWN SEDGWICK DISTRICT COURT — REVERSED AND CASE IS REMANDED WITH DIRECTIONS COURT OF APPEALS — REVERSED NO. 103,758 — OCTOBER 26, 2012
FACTS: In February 2006, Kristin L. Brown petitioned for a divorce from her husband, John Jared Brown. The couple had two young daughters at that time. Jared fell behind in his child support payments, and eventually his wages were garnished. In November 2009, Jared owed $15,524 in unpaid child support and Kristin requested a judgment against Jared for the child support arrearage and for other monies she claimed Jared owed her, including $15,000 Kristin had provided to erase spousal maintenance and child support obligations that Jared owed to his previous spouse. Jared countered with a number of arguments, including the contention that Kristin was trying to get him to pay her separate bills. Jared also claimed a right to the proceeds from the sale of the parties' home. After hearing the parties' arguments, the district judge ruled that Kristin could keep all of the money from the proceeds from the sale of the house and all arrearage would be covered by that and the court "called it good." The Court of Appeals affirmed the district court's orders.
ISSUE: Child support
HELD: Court stated that a district court's authority to discharge or vacate child support that was due under an interlocutory order, other than an ex parte order, is limited. If a motion for modification has not been filed, any court-ordered modification operates prospectively only, and the district court is not authorized to vacate or discharge past-due child support. Court held that although several motions to modify were filed while the divorce was pending, the district court did not make findings that were tied to a motion to modify. Consequently, contrary to the Court of Appeals' holding in this case, the district court could enter only a prospective order regarding child support and was not authorized to vacate the temporary child support order that had resulted in an arrearage of $15,524. It was not entirely clear that the district court modified or vacated the order. Court found it was unable to state with any certainty which one of the two alternatives was intended by the district court. As a result, Court remanded so the district judge can clarify his intent and make further findings that are consistent with this decision.
STATUTES: K.S.A. 20-376; K.S.A. 23-3101, -3103, -3118; K.S.A. 39-7,135; and K.S.A. 60-254, -1607, -1610, -2102
DRIVER S LICENSE SUSPENSION AND SERVICE OF SUSPENSION NOTICE BYRD V KANSAS DEPARTMENT OF REVENUE ATCHISON DISTRICT COURT — REVERSED AND REMANDED COURT OF APPEALS — AFFIRMED NO. 101,189 — OCTOBER 26, 2012
FACTS: KDR suspended Byrd's driving privileges after a blood test reflected an alcohol concentration of .28. In the district court, Byrd argued that he was improperly served with a copy of the officer's certification and notice of suspension, commonly referred to as a DC-27 form, as required by K.S.A. 2007 Supp. 8-1002(c). Deputy Bryan Clark of the Atchison County Sheriff's Office, the officer responsible for arresting Byrd for driving under the influence and for requesting that he submit a blood sample for testing, testified that he did not personally mail the DC-27 form to Byrd. Based on procedures established in the sheriff s office, Clark stated that after receiving the results of a blood test he would complete the DC-27 form and submit it to an administrative assistant, in this case Melissa Hale, and she would be responsible for mailing the form to the address shown on the form. There is no dispute that the DC-27 form was mailed to Byrd and that he received it. Byrd argued that the statute required that Clark personally place the DC-27 form in the mail and because Hale mailed it, his suspension should be reversed. The district court held that K.S.A. 2007 Supp. 8-1002(c) required that the law enforcement officer directing administration of alcohol testing must actually place the DC-27 form in the mail and consequently, reversed his suspension. Court of Appeals agreed with the district court's conclusion that Clark failed to strictly comply with the statute because he did not personally place the notice in the mail. However, Court of appeals reversed the district court, concluding that Clark had accomplished the purpose of the statute and could be deemed to have mailed the DC-27 under the doctrine of substantial compliance...
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