Appellate Decisions
| Publication year | 2015 |
| Pages | 44 |
| Citation | Vol. 84 No. 10 Pg. 44 |
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Supreme Court
Attorney Discipline
INDEFINITE SUSPENSION IN RE WENDELL BETTS ORIGINAL PROCEEDING IN DISCIPLINE NO. 113,578 - OCTOBER 16, 2015
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Betts, of Topeka, an attorney admitted to the practice of law in Kansas in 1981. Betts' ethical issues involve his criminal conduct against his wife, DUI, and also drug crimes. The Kansas Supreme Court had previously put Betts on probation and also censured him.
HEARING PANEL: On October 29, 2014, 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 November 21, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on February 26, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The hearing panel unanimously recommended Betts' license to practice law be suspended for a period of two years.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Betts' license to practice law be suspended for a period of two years.
HELD: Court found that clear and convincing evidence established the charged misconduct. Court recognized the recommendations of the hearing panel and the disciplinary administrator, but held that, given respondent's disciplinary record and the nature of his current problems, a more severe discipline than recommended by the panel should be imposed: he should be indefinitely suspended effective as of the date of his administrative suspension, September 18, 2013; that respondent undergo a Rule 219 reinstatement hearing; and that at the reinstatement hearing, the respondent should be required to establish the six requirements set out by the panel in the final hearing report. A minority of the Court would impose a less severe discipline.
TWO-YEAR SUSPENSION IN RE JARED WARREN HOLSTE ORIGINAL PROCEEDING IN DISCIPLINE NO. 113,970 - OCTOBER 9, 2015
FACTS: Holste, of Atwood, is an attorney admitted to the practice of law in Kansas in 2005. Holste's disciplinary matters involved his representation in civil and criminal matters and using his capacity as Rawlins County attorney to threaten criminal action as a means to force settlement in a civil lawsuit. The uncontested findings demonstrated Holste committed multiple acts of professional misconduct, specifically: (1) using his office as Rawlins County attorney to threaten felony criminal charges against a civil litigant as a means to force settlement of a civil suit; (2) failing to provide the court in an ex parte proceeding with all material facts known to respondent that would have enabled the tribunal to make an informed decision about the entry of default judgment; (3) creating a concurrent conflict of interest between his civil client and his prosecutorial responsibilities as Rawlins County attorney; and (4) initiating a civil action against an individual without a factual basis for doing so.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Holste be censured by the Kansas Supreme Court. The disciplinary administrator found the mitigating factors to be compelling and warranted a reduction in the discipline.
HEARING PANEL: A panel of the Kansas Board for Discipline of Attorneys held a hearing on April 2, 2015, at which the respondent appeared personally and through counsel. The hearing panel determined that respondent violated KRPC 1.7(a) (2014 Kan. Ct. R. Annot. 531) (conflict of interest); 1.11(c)(1) (2014 Kan. Ct. R. Annot. 558) (successive government and private employment); 3.1 (2014 Kan. Ct. R. Annot. 602) (meritorious claims and contentions); 3.3(d) (2014 Kan. Ct. R. Annot. 612) (candor toward tribunal); 4.4(a) (2014 Kan. Ct. R. Annot. 641) (respect for rights of third persons); 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice); and 8.4(e) (statement or implication of an ability to influence improperly a government agency or official). The hearing panel unanimously recommended that Holste be censured by the Kansas Supreme Court—finding Holste's remorse warranted a lesser punishment? and suggesting that Holste investigate membership with the Kansas County and District Attorneys Association for CLE and networking opportunities.
HELD: Court found the evidence before the hearing panel established the alleged misconduct by clear and convincing evidence. Court commented that the courts have long recognized that prosecuting attorneys have broad discretion in deciding whether to charge someone with a crime. Court stated that Holste's misuse of that power by attempting to effect a civil litigation settlement by threatening criminal prosecution was especially egregious. Court suspended Holste for a period of two years, but allowed him to file for early reinstatement after six months following completion of an 18-month probation plan.
ORDER OF REINSTATEMENT IN RE GARY W LONG II NO. 13564 - SEPTEMBER 24, 2015
FACTS: On January 27, 1998, petitioner, Long, surrendered his license to practice law in Kansas. Under Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403), on March 6, 1998, this court disbarred petitioner from the practice of law in Kansas. See In re Long, 264 Kan. 2, 957 P.2d 1105 (1998). Following a hearing, a hearing panel of the Kansas Board for Discipline of Attorneys recommended to the court that petitioner's license to practice law be reinstated, conditioned on petitioner's first taking and passing the Kansas bar examination. After careful consideration, the court accepted the recommendation of the hearing panel. Petitioner took and passed the July 2015 Kansas bar examination.
HELD: Long is 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.
Civil
CHILD SUPPORT AND SOCIAL SECURITY DISABILITY INSURANCE BENEFITS IN RE MARRIAGE OF STEPHENSON ATCHISON DISTRICT COURT - REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – REVERSED NO. 109,121 - OCTOBER 9, 2015
FACTS: This appeal presents an issue of first impression: whether a child-support obligor, who became disabled and applied for Social Security disability insurance (SSDI) benefits for himself and his dependents, may be reimbursed or receive a credit for past childsupport payments. The obligor in this case argued that his children received duplicative payments, both of which satisfied his child-support obligations for the period between his application for and the approval of the SSDI derivative benefits: One payment came directly from the obligor as the child support became due and the second occurred when the Social Security Administration (SSA) paid the SSDI derivative benefits that had accumulated while his application was being processed. Both the district court and a divided Court of Appeals determined that the disabled obligor was not entitled to a credit, a reimbursement, or an offset. In re Marriage of Stephenson & Papineau, 49 Kan. App. 2d 457, 308 P.3d 1270 (2013).
ISSUES: (1) Child support and (2) Social Security disability insurance benefits
HELD: Court reversed the district court and the Court of Appeals. Court held that a district court may—but does not necessarily have to—grant a credit to a child-support obligor who is current on child support when a lump-sum payment of accumulated SSDI derivative benefits duplicates the obligor's support payment. A credit, if granted, may be used to offset other support obligations imposed by the court on the obligor. Alternatively, the district court might adjust an obligor's support obligations, require reimbursement of the duplicative payments from funds that are discrete from SSDI benefits, or fashion some other equitable remedy permitted under applicable federal statutes and regulations. Because the district court in this case did not recognize the extent of its discretionary powers, Court remanded for further proceedings.
STATUTES: No statutes cited.
CONDEMNATION AND DAMAGES KANSAS CITY POWER & LIGHT CO. V STRONG ET AL. JOHNSON DISTRICT COURT – AFFIRMED NO. 110,573 - AUGUST 28, 2015
FACTS: In January 2012, Kansas City Power & Light Co. (KCPL) condemned a power line easement bisecting two tracts of undeveloped agricultural land in southern Johnson County. The land was owned by the trusts for Daniel and Evelyn Strong (the Strongs). The easement occupied approximately 12 out of a combined 460 acres. Court-appointed appraisers awarded the Strongs $96,465 in damages. The Strongs appealed. At trial, the jury awarded the Strongs $1,922,559 as compensation for the taking. KCPL then appealed directly to this court pursuant to K.S.A. 2014...
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