Appellate Decisions
| Publication year | 2019 |
| Pages | 60 |
| Citation | Vol. 88 No. 6 Pg. 60 |
KANSAS STATE SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF SUSPENSION IN RE KEVIN T. CURE NO. 120,518—MAY 10, 2019
FACTS: A hearing panel determined that Cure violated KRPC 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(d) (misconduct that adversely reflects on the lawyer's fitness to practice law); and Supreme Court Rule 203(c)(1) (failure to report felony charge). The complaint was filed after Cure had four DUI convictions and appeared in court under the influence.
HEARING PANEL: The panel noted Cure's multiple convictions as well as his conduct which directly affected clients. The panel considered both aggravating and mitigating factors, which included Cure's alcoholism. The disciplinary administrator recommended an indefinite term of suspension. Cure asked that he be placed on probation. The hearing panel recommended an 18-month suspension, with Cure required to undergo a Rule 219 hearing prior to the consideration of a petition for reinstatement.
HELD: Cure filed no exceptions to the hearing panel's report. The court found that Cure has made significant strides towards changing his circumstances. But his ethical violations were serious. For that reason, a majority of the court agreed with the panel's recommendation of an 18-month suspension. A minority of the court would have imposed lesser discipline.
ORDER OF SUSPENSION IN RE DAVID E. HERRON, II NO. 119,726—MAY 10, 2019
FACTS: A hearing panel determined that Herron violated KRPC 1.6 (confidentiality); 3.3(a)(1) and (d) (candor toward tribunal); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Charges arose after Herron told law enforcement that his client told him that she was faking urine tests in order to hide positive results. There was also an issue with a different client when Herron allegedly lied to the court about opposing counsel's willingness to reargue an issue after a bench warrant was issued. Herron was fired and his former employer filed a disciplinary complaint.
HEARING PANEL: The hearing panel found several instances where Herron lied to the district court. The hearing panel found a number of aggravating factors, including the submission of false evidence during the disciplinary process. The disciplinary administrator recommended disbarment. The hearing panel recommended that Herron be suspended for 30 days.
HELD: Herron disputed the hearing panel's findings. After considering Herron's arguments, the court adopted most of the hearing panel's report, but found that some actions flagged by the hearing panel as misconduct were within the realm of appropriate representation. A majority of the court concluded that a 60-day suspension was appropriate discipline. A minority of the court would have imposed a longer suspension.
ORDER OF DISBARMENT IN RE JOHN S. SUTHERLAND NO. 8,791—MAY 2, 2019
FACTS: In a letter signed April 23, 2019, John S. Sutherland voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Sutherland was facing a disciplinary complaint connected with his convictions for mail fraud and making a false statement.
HELD: The Court accepts the surrender of Sutherland's license and he is disbarred.
CIVIL
DOUBLE JEOPARDY—HABEAS CORPUS IN RE PETITION FOR HABEAS CORPUS BY BOWMAN ORIGINAL ACTION—WRITIS GRANTED NO. 119,270—MAY 17, 2019
FACTS: Bowman was charged with rape, aggravated criminal sodomy, and intimidation of a witness after he allegedly sexually abused his three-year-old granddaughter. At trial, witnesses testified about what the child told them and the tape of a 911 call was introduced. The child was called to testify by closed-circuit television with a comfort aide next to her. But despite repeated prompting, the child would not respond when questioned about whether she would tell the truth, and she would not take the witness oath. When it became apparent that the child was not going to take the oath, the district court asked for guidance on how to address the hearsay issue that was now present. The district court granted the State's motion for mistrial and the jury was dismissed. Bowman later moved to have the case dismissed with prejudice since jeopardy had attached. The district court found that manifest necessity warranted allowing the State to try Bowman for a second time. Bowman sought original review of that decision.
ISSUES: (1) Original jurisdiction; (2) mistrial; (3) double jeopardy
HELD: The court may take jurisdiction over this matter under K.S.A. 60-1501 in order to address the double jeopardy claim. All analysis is based on statutory language rather than constitutional provisions. The child's failure to take the oath made the trial more difficult for the State, but it did not make the trial physically impossible. Jurors could have been instructed to ignore testimony that was now hearsay and jurors knew that counsel's arguments were not evidence. And the prosecutor knew that relying on a young child's testimony could be risky, yet chose to introduce hearsay evidence before attempting to have the child take the oath. In the absence of any statutory authority, the district court judge abused its discretion by granting a mistrial. Jeopardy clearly attached in Bowman's first trial. The child's refusal to take the witness oath did not render a verdict "impossible"ﾝ, as required by the double jeopardy statute, which means that the district court erred by finding that a second trial was permissible. Bowman's criminal case must be dismissed, and he must be released from confinement.
DISSENT: (Luckert, J., joined by Nuss, C.J. and Stegall, J.) The district court did not abuse its discretion by declaring a mistrial. The prosecutor's comments made it impossible for Bowman to receive a fair trial. Because of this fact, a second prosecution is not barred by double jeopardy.
STATUTES: K.S.A. 2018 Supp. 21-5110, -5110(a)(3)(C), -5110(f), 60-1501, -1501(a); K.S.A. 22-3423, -3423(1)(a), -3423(1)(c), 60-418, -460(a), -460(dd)
DRAM SHOP LAW—TORTS KUDLACIK V. JOHNNY'S SHAWNEE, INC. JOHNSON DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 115,869—MAY 10, 2019
FACTS: Kudlacik was gravely injured by Smith, who was intoxicated after spending the evening drinking at Johnny's Shawnee and Barley's Bar. Kudlacik sued Johnny's, claiming that bartenders continued to serve Smith even after they knew or should have known that he was intoxicated to an extent that he was a danger to others. Johnny's moved to dismiss on grounds that Kansas does not recognize a cause of action for a third-party to sue dispensers of alcoholic beverages for harm done to the third party. Kudlacik appealed and the Court of Appeals summarily affirmed. The Supreme Court granted Kudlacik's petition for review.
ISSUES: (1) Existence of negligence claim; (2) aiding and abetting
HELD: Kansas has repeatedly refused to impose a dram shop liability. Kudlacik's arguments that the current rule is outdated and bad public policy have merits, but not enough to change the status quo. There is no duty of care that runs from tavern owners to third-parties injured by tavern patrons after they have left the premises. Aiding and abetting claims exist only under narrow circumstances which are not applicable here.
STATUTES: No statutes cited.
QUO WARRANTO—STATUTORY INTERPRETATION STATE V. KELLY ORIGINAL ACTION—QUO WARRANTO GRANTED NO. 121,061—MAY 10, 2019
FACTS: A vacancy on the Kansas Court of Appeals was created by the retirement of Judge Patrick McAnany on January 14, 2019. As required by statute, 60 days later, Governor Kelly nominated Judge Jeffry Jack to fill the vacancy. It is undisputed that the nomination was made and accepted within the statutory time frame. On March 18, 2019, Judge Jack sent a letter informing the Senate that he was withdrawing his name from consideration at the governor's request. The following day, Governor Kelly communicated this withdrawal to the Senate Majority Leader. In that same communication, Governor Kelly told the Senate Majority Leader that she would make a new appointment within 60 days. This prompted a...
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