Appellate Decisions
| Publication year | 2020 |
| Pages | 64 |
September, 2020
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KANSAS STATE SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020
FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.
HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.
CIVIL
ADOPTION
IN READOPTION OF BABY GIRL G.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 121,051—JULY 10, 2020
FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father's parental rights were terminated. The court of appeals affirmed that ruling but reversed the award of attorney fees and remanded the case to district court for further consideration of that issue. Father's petition for review was granted.
ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support
HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court's decision that Father failed to support the natural mother during the last six months of her pregnancy. Father's non-financial support was minimal and of little value to the mother and his financial support was inconsequential.
DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father's constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling.
STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h) (1)
HABEAS CORPUS, RIGHT TO COUNSEL
BALBIRNIE V. STATE
FRANKLIN DISTRICT COURT— COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,650—JULY 24, 2020
FACTS: Balbirnie was convicted of second-degree murder, and his conviction was affirmed on direct appeal. Throughout that process, Balbirnie consistently proclaimed his innocence and blamed the murder on one of the other people present at the scene of the crime. Within one year of his conviction being affirmed, Balbirnie filed a K.S.A. 60-1507 motion in which he claimed trial counsel was ineffective for failing to investigate and then introduce at trial a recording of a 911 call at which an eyewitness named another person as the murderer. After an evidentiary hearing, the district court found that trial counsel did not perform deficiently and even if he had, Balbirnie failed to establish prejudice. The Court of Appeals disagreed with the district court on the question of trial counsel's performance, finding that the failure to introduce the 911 call fell below an objective standard for reasonably effective representation. But the panel ultimately affirmed the district court, holding that this deficient performance did not prejudice Balbirnie. The Supreme Court granted Balbirnie's petition for review.
ISSUES: (1) Performance; (2) prejudice
HELD: Balbirnie prevailed in the Court of Appeals on the issue of deficient performance and did not seek review of that decision. The State did not file a cross-petition for review either, although case law existing at the time the petition was filed suggests such a filing was not necessary. A cursory glance at the Court of Appeals' decision shows that it correctly ruled that trial counsel's failure to introduce the 911 call was not a strategic decision was, in fact, objectively unreasonable. A review of the evidence in its totality shows that if the call had been introduced there was a reasonable probability the jury would have made a different decision. This is true even though there was evidence of Balbirnie's guilt.
STATUTE: K.S.A. 60-420, -1507
JURISDICTION-TAXATION
IN RE EQUALIZATION APPEALS OF TARGET CORPORATION
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS
NO. 11,228 – JULY 10, 2020
FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County's ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn't learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted.
ISSUES: (1) Jurisdiction; (2) scope of review
HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA's failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency's failure to act in a timely manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA's refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County's argument.
CRIMINAL
APPELLATE PROCEDURE—CONTRACTS—CRIMINAL PROCEDURE—EVIDENCE—MOTIONS
STATE V. BRAUN
ELLIS DISTRICT COURT-REVERSED AND REMANDED; COURT OF APPEALS—REVERSED
NO. 113,762—AUGUST 28, 2020
FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun's arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court's denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun's conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun's petition for review granted on sole issue of whether panel erred in finding harmless error.
ISSUE: (1) Stipulated facts in support of conviction on alternative charge
HELD: Braun's conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun's motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel...
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