Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 89 No. 8 Pg. 67 |
| Pages | 67 |
| Publication year | 2020 |
November, 2020
Kansas State Supreme Court
Attorney Discipline
INDEFINITE SUSPENSION
IN RE JAMES W. FULLER
NO. 122,638—OCTOBER 30, 2020
FACTS: A hearing panel determined that Fuller violated Kansas Supreme Court Rules 208 (registration), 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.7 (conflict of interest), 1.16 (terminating representation), 5.5 (unauthorized practice of law), and 8.4 (professional misconduct). After law school, Fuller illegally purchased Adderall, a stimulant medication, from C.M. After C.M. was charged with a crime, Fuller agreed to represent him. Instead of fee payment, Fuller agreed to accept methamphetamine and Adderall as payment for his services. Fuller missed a court date for another client, resulting in the client's arrest. When Fuller's senior partner investigated the matter, he found logs for court dates that did not happen and software on Fuller's computer that proved he was trading legal services for drugs. The partner filed a disciplinary complaint and Fuller self-reported his conduct. Fuller also failed to pay his annual registration fee or complete CLE, and his license was suspended. Despite that fact, Fuller continued to practice law during his suspension.
HEARING PANEL: Fuller stipulated to all charged violations. The panel noted there were multiple offenses involving illegal conduct. The Disciplinary Administrator recommended that Fuller be indefinitely suspended. Fuller acknowledged that a suspension was appropriate but asked that the term be limited to six months. The hearing panel agreed with the Disciplinary Administrator and recommended an indefinite suspension.
HELD: Fuller did not file exceptions to the hearing panel's report, and it is deemed admitted. While sympathetic to Fuller's drug dependence, the court could not overlook the serious nature of Fuller's misconduct. The court accepted the recommendation of an indefinite suspension.
TWO-YEAR SUSPENSION
IN RE MARK D. MURPHY
NO. 122,036—OCTOBER 16, 2020
FACTS: A hearing panel determined that Murphy violated KRPC 1.1 (competence); 1.2(c) (scope of representation); 1.7 (conflict of interest); 2.1 (independent judgment); and 8.4(d) (conduct prejudicial to the administration of justice). The issues arose after Murphy represented both sides in a business transaction without informing his clients of the potential conflicts of interest and without learning that one party to the transaction had already filed for bankruptcy.
HEARING PANEL: The disciplinary administrator asked that Murphy be disbarred. This incident was part of a pattern of misconduct which resulted in minor discipline. Murphy was dishonest about his role in the proceedings and did so in an attempt to minimize his culpability. Based on the balance of the aggravating and mitigating circumstances, the hearing panel recommended that Murphy's license be suspended for one year.
HELD: Murphy filed several exceptions to the hearing panel report. But the evidence presented supports the hearing panel's findings by clear and convincing evidence, and some of Murphy's arguments mischaracterized the evidence. Murphy argued that the recommended discipline was excessive and that reprimand would be the appropriate discipline or, in the alternative, that he be allowed to serve a term of probation. Both the Disicplinary Administrator and the court found that Murphy failed to comply with the rules regarding probation and denied his request. After considering the evidence, the court concluded that a two-year suspension was the appropriate discipline. The second year of the suspension may be stayed if Murphy follows a probation plan which is approved by the Disciplinary Administrator's office.
CIVIL
PARENTAGE
IN RE PARENTAGE OF M.F.
BUTLER DISTRICT COURT—COURT IS APPEALS IS REVERSED, DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 117,301—NOVEMBER 6, 2020
FACTS: K.L. and T.F., who are both women, began a romantic relationship in 2007. They eventually moved in together and had a joint checking account and T.F.'s name was added to the mortgage and deed. T.F. strongly wanted children; there was disputed evidence about whether K.L. wanted children. T.F. conceived via artificial insemination and M.F. was born in 2013. The couple did not create a written co-par-enting agreement. Their romantic relationship ended in 2014 when T.F. moved out of the shared home, taking M.F. with her. K.L. petitioned to establish parentage. The district court heard conflicting evidence about the state of the couple's relationship, how much input K.L. had in parenting M.F., and how much she was allowed to see the baby after the couple separated. After hearing that evidence, the district court concluded that the couple never made a joint decision to have children and that T.F. was the sole legal parent. K.L. appealed and a panel of the Court of Appeals affirmed the district court, finding that K.L. failed to meet her burden of proof. The Supreme Court granted K.L.'s petition for review on the issue of whether unmarried parties who conceive through assisted reproductive technology are required to show the existence of a parentage contract.
ISSUE: (1) Appropriate standard to use when reviewing claims of parentage
HELD: The Kansas Parentage Act extends to every child and every parent, regardless of the parents' marital status. It also creates parentage even if reproductive technology is used to assist in conception and even when one parent is not biologically related to the child. The KPA is not limited to establishing paternity, and under federal legislation same-sex couples gain protected constitutional rights, including parentage for a non-biological parent. The first step for a woman seeking legal recognition of a parent-child relationship is satisfying one of the presumptions of maternity found at K.S.A. 2019 Supp. 23-2208(a). Under the framework of K.S.A. 2019 Supp. 23-2208(a)(4), K.L. can meet this presumption if she can show that she either openly recognized M.F. as her child or because she has a written instrument showing the same thing. That would shift the burden to rebut the presumption to T.F. If T.F. can rebut the presumption, K.L. bears the burden of going forward with evidence that she was a parent to M.F. Both the district court and the Court of Appeals required more proof than is mandated by the KPA. On remand, the district court must answer the correct question— whether K.L. can demonstrate that she notoriously recognized her maternity. If that question is answered in the affirmative, additional proceedings can evaluate how much involvement she should have in M.F.'s life. On remand, the district court should establish whether T.F. consented to share parenting with K.L. when M.F. was born. The timing is important; the intent of the parties at the time of the child's birth is what must be examined.
DISSENT: (Stegall, J.) There is no way the legislature meant for the KPA to allow a nonbiological parent to become a biological parent. The majority's holding is too vague to give guidance to district courts.
STATUTE: K.S.A. 2019 Supp. 23-2201(b), -2205, -2206, -2208, -2208(a), -2208(b), -2220, -2308(f), -2209, -2302, -2303
CONSTITUTIONAL ISSUES—DUI
JARVIS V. KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 119,116—OCTOBER 9, 2020
FACTS: A law enforcement officer initiated a traffic stop after watching Jarvis drive. The officer noticed that Jarvis smelled of alcohol and had bloodshot eyes. After he performed poorly on field sobriety tests, Jarvis was arrested for driving under the influence. After receiving the DC-70 advisory, Jarvis refused to supply a blood or breath sample and his driver's license was suspended. Jarvis appealed and a hearing officer affirmed the suspension, so Jarvis petitioned for judicial review. The district court conducted an evidentiary hearing and relied on K.S.A. 2019 Supp. 8-1020(p) when concluding that the officer's testimony was not credible and that the officer lacked reasonable suspicion to justify the traffic stop. KDR appealed, and the Court of Appeals affirmed the district court. KDR's petition for review was granted.
ISSUES: (1) Application of K.S.A. 2019 Supp. 8-1020 to administrative suspension; (2) existence of reasonable suspicion
HELD: The 2016 amendments to K.S.A. 8-1020(p) allow a court to consider and determine constitutional issues, including the lawfulness of a law enforcement encounter. This is not just advisory language meant to guide law enforcement officers; the Kansas Judicial Review Act does not allow courts to issue advisory opinions. Instead, K.S.A. 2019 Supp. 8-1020(p) directs courts to consider and determine any constitutional issues. And setting aside the license suspension order is an appropriate remedy if the court determines that the law enforcement encounter was unlawful. A review of the record on appeal shows the district court correctly determined that law enforcement's stop of Jarvis lacked reasonable suspicion.
STATUTES: K.S.A. 2019 Supp. 8-259, -1020, -1020(h), -1020(o), -1020(p), -1020(q); K.S.A. 8-259, 77-617, -621, -622, -622(b)
DUI—INFORMED CONSENT
WHIGHAM V KANSAS DEPARTMENT OF REVENUE JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART—DIS TRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED
NO. 117,043—OCTOBER9, 2020
FACTS: After receiving a tip, law enforcement found Whigham in his open garage, hunched over the steering wheel of his vehicle and smelling of alcohol. After he performed poorly on field sobriety tests, Whigham was arrested for driving under the influence. Officers gave the DC-70 implied consent form and Whigham refused to provide a breath sample...
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