Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 86 No. 5 Pg. 56 |
| Pages | 56 |
| Publication year | 2017 |
Supreme Court
Attorney discipline
TWO-YEAR SUSPENSION, STAYED AFTER 6 MONTHS, 2 YEARS' SUPERVISED PROBATION IN RE JOHN P. BISCANIN NO. 115,002—MARCH 24, 2017
FACTS: A hearing panel determined that Biscanin violated KRPC 1.8(a) (conflict of interest), 1.15(a) (safekeeping property), and 1.15(d) (1) (preserving client funds). The violations came to light after Biscanin provided representation in an estate action. Although the client received funds, those funds were not promptly and completely deposited in Biscanin's trust account. After the matter was concluded, Biscanin borrowed from the client and used the money for a business transaction. Biscanin did not inform the client that he should seek independent counsel, and he did not seek a waiver of the conflict of interest. Biscanin also failed to make interest and principal payments when requested by the client.
HEARING PANEL: When reviewing aggravating and mitigating circumstances, the hearing panel noted that Biscanin was participating in a diversion program at the time these offenses were committed. The hearing panel also noted that Biscanin did not cooperate during the hearing and was deceptive during testimony. The hearing panel found no mitigating circumstances. The hearing panel recommended a period of 2 years' suspension, but that after 3 months Biscanin should be placed on 2 years of supervised probation. The hearing panel approved of that plan, but recommended that Biscanin's probation plan be altered to be more detailed.
HELD: The Court determined that the hearing panel made some errors of fact relating to Biscanin's credibility. However, there was clear and convincing evidence that Biscanin violated KRPC 1.8(a). There was also clear and convincing evidence that Biscanin failed to promptly return the outstanding funds to the client when those funds were demanded. A majority of the court agreed that a 2-year suspension was appropriate, with Biscanin serving 6 months of actual suspension and then a stay of the suspension and supervised probation.
PUBLISHED CENSURE IN RE GIARDINE NO. 116,190—APRIL 7, 2017
FACTS: Giardine was accused of violating KRPC 8.2(b) (lawyer candidate for judicial office shall comply with applicable provisions of code of judicial conduct), KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and Kansas Code of Judicial Conduct Rule 4.1(A)(4) (knowingly making any false or misleading statement). While in law school, Giardine was arrested for possession of marijuana. His attorney told him that the charge had been dismissed. However, when Giardine ran in a contested primary for a judicial position a reporter contacted Giardine to ask him about an outstanding arrest warrant. Giardine self-reported the incident to the Office of the Disciplinary Administrator and he entered a guilty plea to a lesser charge. But Giardine told the reporter that he was not the person named in the warrant. Giardine repeated this misrepresentation during a public candidate forum and again on an online message board.
HEARING PANEL: After noting Giardine's cooperation and good reputation, the hearing panel unanimously recommended that Giar-dine be censured. The disciplinary administrator asked for a 1-year suspension of Giardine's law license.
HELD: This case is unique because it involves both the Kansas Rules of Professional Conduct and the Kansas Code of Judicial Conduct. Both codes explicitly apply to an attorney who is a judicial candidate. The hearing panel's findings and conclusions were adopted. A minority of the court would impose a more severe sanction, but a majority of the court agreed with the hearing panel and agreed that published censure was the appropriate discipline.
JUDICIAL DISCIPLINE HEARING PANEL AFFIRMED IN RE HENDERSON NO. 114,488 —APRIL 7, 2017
FACTS: In 2014, Henderson was found to have violated the Kansas Code of Judicial Conduct. He was suspended from the bench for 90 days. After that case had been heard but while it was still pending, additional complaints against Henderson were lodged with the Commission on Judicial Qualification. The complaints, which involved allegations that Henderson was not candid and honest in his testimony before the court, were docketed and investigated.
HEARING PANEL: The investigatory panel concluded that Henderson was neither candid not honest in his testimony. A majority of the panel recommended public censure and a 30-day suspension, with one member recommending a more severe sanction. Before the case could be heard, Henderson was defeated in his primary bid for reelection. He resigned from his position and asked the court to declare the matter moot and terminate further proceedings.
HELD: The case is not moot simply because Henderson is no longer on the bench. The duty to protect the public from malfeasance does not terminate once the judge steps down. Testimony given to the panel reinforced the earlier determination that Henderson committed misconduct and shows Henderson's lack of candor. The panel's findings are supported by clear and convincing evidence.
CIVIL
OPEN RECORDS—STATUTORY INTERPRETATION THE SALINA JOURNAL V BROWNBACK SHAWNEE DISTRICT COURT— REVERSED AND REMANDED NO. 115,194—APRIL 7, 2017
FACTS: The Salina Journal submitted a Kansas Open Records Act request to the office of Governor Sam Brownback seeking records pertaining to all those who applied for two newly created Saline County commissioner positions. The request was denied on grounds that the requested records were exempt from disclosure, and the Journal filed suit. The district court granted the request, finding that the records were not exempt as personnel records, preliminary working papers, or private.
ISSUE: Did the district court err by finding that the requested applications were not exempt from KORA
HELD: It is undisputed that the records requested constituted public records that belonged to a public agency. The plain language of the personnel records exemption allows for exemption of records pertaining to officers and employees in public agencies as well as applicants for employment in those positions. There is no fundamental difference under the statute between "applicants for appointment" and "applicants for employment." The plain language of the exemption clearly does not require disclosure of the requested information.
DISSENT: (Hill, J.) It is error to equate county commissioners with employees. Those who sought appointment to the Saline county commission are not job applicants, they are candidates for office. As such, their identity is not protected under an exception to KORA.
STATUTES: K.S.A. 2014 Supp. 19-203(c), 45-217(f), -217(g), -221(a)(4), -221(a)(6), -221(a)(20), -221(a)(30), 75- 4318(a);
K.S.A.19-212, 45-216(a)
TAXATION
HEARTLAND APARTMENT ASSOCIATION, INC. V CITY OF MISSION, KANSAS
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS REVERSED AND REMANDED
NO. 111,521—APRIL 7, 2017
FACTS: The City of Mission enacted Ordinance No. 1332, which established a Transportation Utility Fee which was levied on the owners of all developed property within the city. The TUF was based on the direct and indirect use or benefit derived from the use of public streets and sidewalks and was determined by a property's estimated "trip generation" over a period of time. Heartland Apartment Association, Inc. filed suit against the city seeking a declaratory judgment and injunctions, claiming that the TUF was an impermissible excise tax that violated K.S.A. 2016 Supp. 12-194. Individual plaintiffs also filed suit seeking a refund of TUF amounts already paid. The district court granted the city's motion for summary judgment, ruling that the TUF was not an excise tax and that it was properly created through the city's home rule authority. The Court of Appeals reversed, finding that the TUF was an excise tax that fell outside of the city's home rule capabilities. The Court of Appeals declined to address the plaintiffs' due process and equal protection arguments. The Kansas Supreme Court granted review.
ISSUES: (1) Is the TUF a tax? (2) If so, is it an impermissible excise tax?
HELD: A tax is a forced contribution to pay for government's general services, regardless of whether any particular person has paid. A fee is not a revenue measure; it is assessed against those who gain the exclusive benefit of a service. Under these parameters, the TUF is a tax. And because the TUF is a tax on real property owners' use of their property, rather than a tax on the property itself, the TUF is an impermissible excise tax.
STATUTES: Kansas Constitution Article 11, § 1(b), Article 12, § 5; K.S.A. 2016 Supp. 12-194; K.S.A. 12-140
APPELLATE PROCEDURE—JURISDICTION IN RE CARE AND TREATMENT OF EMERSON SEDGWICK DISTRICT COURT—APPEAL DISMISSED NO. 113,503—APRIL 7, 2017
FACTS: Emerson was found to be a sexually violent predator in 1999. Emerson perfected an appeal but it was dismissed after his attorney failed to file a brief. In 2014, Emerson, represented by new counsel, moved the district court to permit an out-of-time appeal of the underlying ruling that he was a sexually violent predator. After hearing testimony from Emerson, the district court ruled that it would allow Emerson to appeal based on the fact that his previous counsel failed to file a brief or communicate about the appeal's dismissal. The Court of Appeals considered the merits of Emerson's arguments but affirmed the district court. The Supreme Court granted review.
ISSUE: Does the court have jurisdiction to consider the merits of Emerson's appeal
HELD: The district court lacked jurisdiction to provide any remedy to Emerson. There was a timely notice of appeal that was docketed and subsequently...
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