Appellate Decisions
| Citation | Vol. 90 No. 5 Pg. 67 |
| Pages | 67 |
| Publication year | 2021 |
Kansas State Supreme Court
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ATTORNEY DISCIPLINE
ORDER OF DISBARMENT IN RE BRYAN EUGENE BENNETT DOCKET NO. 20,778-JULY 1, 2021
FACTS: Bennett's license to practice law in Kansas was suspended in October 2018 after Bennett was convicted of possession with intent to distribute a hallucinogenic drug. Multiple charges remained pending, and a hearing was scheduled in July 2021 to consider these remaining complaints. On June 15, 2021, Bennett voluntarily surrendered his license to practice law in Kansas.
HELD: The court accepts the surrender and Bennett is disbarred.
ORDER OF DISBARMENT IN RE KEVIN W. KENNEY NO. 123,589-JULY 16, 2021
FACTS: In June 2020, the office of the Disciplinary Administrator filed a complaint against Kenney alleging violations of KRPC 3.1 (meritorious claims and contentions), 3.3(a)(1) (making a false statement of fact or law to a 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). The complaints arose after Kenney represented a couple who hoped to adopt a baby after the biological mother relinquished her parental rights. Kenney made assertions to the district court regarding the putative biological father which he did not know to be true. The district court allowed the adoption and the biological father appealed. During the appellate process, both the Court of Appeals and Supreme Court noted the lack of evidence to support Kenney's pleadings. When questioned, Kenney explained that he was never sure whether he could believe his clients, so he pleaded all statutory factors for adoption even if he was unaware of facts to support them. Kenney selfreported his conduct to the Disciplinary Administrator. While this complaint was pending, the Disciplinary Administrator learned of another case involving Kenney with similar facts.
HEARING PANEL: Kenney stipulated to the violations. When considering discipline, the hearing panel noted the pattern of misconduct and the vulnerability of the victims. But Kenney self-reported his actions, participated in the disciplinary process, and showed genuine remorse. The Disciplinary Administrator asked for an 18-month suspension of Kenney's license. Kenney asked for a public censure. The hearing panel recommended a six-month suspension.
HELD: The facts are deemed admitted under the stipulation. When considering discipline, the court found Kenney's actions to be "egregious" misconduct. The court likened his actions to using the legal process to traffic children. Given the nature of the misconduct, the court concluded that disbarment was the only appropriate remedy.
ORDER OF DISBARMENT IN RE ROY T. ARTMAN NO. 123,682-AUGUST 13, 2021
FACTS: A hearing panel found that Artman violated KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 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). The complaint arose after Artman was involved in a hit-and-run traffic incident which resulted in a fatality. Artman was convicted of a level 6 felony.
HEARING PANEL: The hearing panel found that some of Artman's testimony regarding the accident was not credible. Some of this testimony shows that his misconduct was motivated by dishonesty and selfishness. The disciplinary administrator recommended that Artman be disbarred. Artman asked for an indefinite period of suspension. Because there were so many aggravating circumstances, the hearing panel recommended disbarment.
HELD: There were no exceptions to the hearing panel's report, so it is deemed admitted. At argument, Artman gave the same explanations for his behavior; explanations which the hearing panel found were not credible. After considering all of the evidence, the court rules that disbarment is the appropriate discipline.
CIVIL
OPEN RECORDS; STANDING BAKER V. HAYDEN JOHNSON DISTRICT COURT-APPEAL DISMISSED NO. 117,989-JULY 2, 2021
FACTS: Baker made a written request to listen to and copy digital audio recordings made during two public court hearings in Johnson County District Court. Baker was not a party to the case nor counsel to any party. Baker's request went to the court administrator in her capacity as records custodian. His request was denied, both the records custodian and the then-Chief Judge told Baker his only option was to purchase a copy of the transcript of the proceedings. Baker filed suit, claiming the Kansas Open Records Act required disclosure of the audio recordings. While this suit was pending, counsel for the records custodian provided the requested recordings to Baker in response to his discovery request. The district court ultimately ruled in the County's favor, finding that KORA does not require disclosure of audio recordings of open court proceedings. It also ruled Baker's demand to inspect the recordings was moot because counsel provided them as part of discovery. Baker appealed and the Court of Appeals reversed, holding that nothing in KORA automatically exempts audio recordings of open court proceedings from disclosure. But because Baker already had the recordings, the panel found it unnecessary to remand the case to the district court. The records custodian's petition for review was granted only as to whether KORA requires disclosure of audio recordings.
ISSUES: (1) Standing
HELD: Standing is jurisdictional. Because he brought the claim, Baker has the burden to establish standing requirements. Baker has statutory standing under KORA. But he lost traditional standing once he received the recordings, and he did not amend his petition to include claims that could support standing on different grounds. In the absence of standing, both the Court of Appeals' decision and this appeal are dismissed for lack of jurisdiction.
DISSENT: (Biles, J., joined by Rosen, J., and Malone, SJ) The majority blurs the line between standing and mootness. There is also real danger of creating a loophole which will allow public agencies to deny KORA requests up until litigation commences and then provide the requested material at the last possible minute. Withholding the recordings violates KORA, and there should be a clear holding of this fact.
STATUTES: K.S.A. 2020 Supp. 45-217(e), -219(a), -221(a), -222(a), 60-212; K.S.A. 45-216(a), -218(a)
AGENCY ACTION; JURISDICTION HANSON V. KANSAS CORPORATION COMMISSION STEVENS DISTRICT COURT-COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED NO. 119,834-JULY 16, 2021
FACTS: In 2012, TKO received a limited certificate of public convenience to service natural gas customers. TKO assumed customers acquired from another company and so did not go through traditional utility ratemaking at the Kansas Corporation Commission. In 2014, Hanson, acting on behalf of several other customers, complained to the KCC about TKO's billing practices. The charge was that TKO calculated volume incorrectly, resulting in prices 9.5% higher than justified. Hanson argued that both TKO's rates and billing practices were unjust and unreasonable. After an evidentiary hearing, the KCC determined that Hanson failed to carry the burden of proving that TKO's rates or practices were unreasonable. Hanson appealed to district court, which reversed the KCC. A panel of the Court of Appeals affirmed in part and reversed in part. It agreed that the KCC erred by holding that TKO's billing practices were acceptable. But instead of ordering a direct refund, the panel ordered the KCC to craft a remedy that balanced Hanson's interests and the public interest. A petition for review was granted.
ISSUES: (1) Grounds for relief under K.S.A. 77-621(c)(3); (2) relief under K.S.A. 77-621(c)(4)
HELD: Hanson may not have liked the result, but the KCC ruled on all issues before it. The Court of Appeals erred by relying on K.S.A. 77-621(c)(3). But the panel correctly ruled that the KCC must be reversed under K.S.A. 77-621(c)(4). The record as a whole shows that the KCC's factual findings were not supported by the evidence in the agency record. This is not a case of weighing contradictory evidence but of lacking evidence. The case is remanded to the KCC for further action consistent with this opinion.
STATUTES: K.S.A. 66-1,205(a), -1,206(a), -1,207, 77-621(a) (2), -621(c)(3), -621(c)(4), -621(c)(7) JURISDICTION; JUVENILE JUSTICE IN RE I.A. JOHNSON DISTRICT COURT-COURT OF APPEALS IS AFFIRMED, APPEAL DISMISSED NO. 118,802-JULY 23, 2021
FACTS: In 1998, I.A. was adjudicated to be a juvenile offender. He pled guilty to two counts in exchange for the dismissal of other charges. At the plea hearing, the district court advised I.A. of certain rights but he was never told of his right to appeal; the statute in place at the time did not require such notification. Nineteen years later, I.A. filed a pro se request to file an out-oftime direct appeal. As justification, I.A. argued that the district court never told him of his right to a jury trial and failed to obtain a knowing and voluntary waiver of his rights. The district court denied the request and I.A. appealed. After remanding for additional factfinding, the Court of Appeals accepted that I.A. was never told of his right to appeal the adjudication. Finding no right to be so informed, the Court of...
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