Appellate Decisions
| Publication year | 2016 |
| Pages | 36 |
All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at info@ksbar.org or at (785) 234-5696. You may go to the courts' website at www.kscourts.org for the full opinions.
Supreme Court
Attorney Discipline
ONE-YEAR SUSPENSION IN THE MATTER OF LYLE LOUIS ODO NO. 114,863—JULY 15, 2016
FACTS: Odo is a Kansas-licensed attorney with a primary place of business in Missouri. In November 2015, a hearing panel of the Kansas Board for Discipline of Attorneys determined that Odo violated Kansas Rules of Professional Conduct 1.7(a)(2) (conflict of interest), 1.8(a) (conflict of interest), 1.8(e) (providing financial assistance to client), 1.9(a) (duties to former clients), 1.15(d) (preserving client funds), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The disciplinary investigation arose after Odo represented two individuals who had been injured in the same car accident. When one of the clients experienced financial difficulties, Odo steered him to a lending operation of which Odo was president. Although Odo is not technically the owner, he derives benefit from profits earned by the company. Odo did not advise his client that he had the right to seek independent counsel on the loan terms, and the lines were blurred between Odo's representation of his client in the personal injury case and Odo's representation of his company. Odo's license to practice law in Missouri has been indefinitely suspended.
HEARING PANEL: The hearing panel determined that Odo's actions violated the KRPC because his concurrent conflicts between client and business kept him from adequately representing either client. After weighing the aggravating and mitigating factors, the panel recommended that Odo be indefinitely suspended.
HELD: The court accepted the recommendation of the disciplinary administrator that Odo be suspended for one year. He must appear for a reinstatement hearing before being allowed to practice law in Kansas.
Civil
KANSAS CONSTITUTION—SCHOOL FINANCE GANNON V. STATE SHAWNEE DISTRICT COURT— ORDER AFFIRMING COMPLIANCE NO. 113,267—JUNE 28, 2016
FACTS: In May 2016, the Kansas Supreme Court held that the legislature had not cured the inequities in the local option budget (LOB) and supplemental general state aid that had previously been found to exist. In response to that decision, the governor called the legislature into special session for the purposes of addressing the holding. After the legislature passed and the governor signed a new funding formula, the parties filed a Joint Stipulation of Constitutionally Equitable Compliance. The parties jointly asked the court to acknowledge that the legislature satisfied the court's orders regarding the equity of school finance, and that there was no judicial remedy needed.
ISSUE: Whether H.B. 2001 satisfies the court's prior rulings regarding equitable school funding in Kansas
HELD: H.B. 2001's revival of the prior School District Finance and Quality Performance Act, plus full funding, means that the school finance formula for fiscal year 2017 is in compliance with the equity component of Article 6, § 6 of the Kansas Constitution. The court retained jurisdiction to address the adequacy portion of the school finance litigation.
Criminal
CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— DEATH PENALTY—JURY - STATUTES STATE V. CHEEVER GREENWOOD DISTRICT COURT—AFFIRMED NO. 99988—JULY 22, 2016
GUILT PHASE: Cheever was convicted of killing sheriff; death sentence was imposed. Regarding guilt phase of trial, Kansas Supreme Court reversed, finding Cheever did not waive Fifth Amendment privilege against self-incrimination by presenting voluntary intoxication defense to capital murder charges, thus state's rebuttal expert witness (Wel-ner) should not have been allowed to testify. U. S. Supreme Court disagreed, holding Welner's expert opinion testimony was admissible. State v. Cheever, 295 Kan. 229 (2012), vacated and remanded 134 S.Ct. 596 (2013). Scope of Welner's rebuttal testimony was considered on remand, as well as impact of subsequent legislative amendment stating that felony murder was not a lesser included offense of capital murder.
ISSUES: (1) Proper rebuttal testimony, (2) Felony-murder instruction
HELD: Admission of Welner's testimony, which revolved around Welner's statement that Cheever emulated an outlaw lifestyle, and alleged implication that Cheever had antisocial personality disorder, was within trial court's broad discretion. Reasoning in State v. Gleason, 299 Kan. 1127 (2014), rev'd and remanded sub nom. Kansas v. Carr, 136 S.Ct. 633 (2016), and State v. Carr, 300 Kan. 1 (2014), rev'd and remanded 136 S.Ct. 633 (2016), that retroactive application of the statutory amendment did not violate due process or ex post facto clauses, applies to this case. Cheever not entitled to felony-murder lesser included offense instruction.
PENALTY PHASE: Regarding penalty phase of trial, court addressed undecided issues in Cheever earlier decision. First, that the instructions failed to inform jury that mitigating circumstances need not be proven beyond a...
To continue reading
Request your trial