Appellate Decisions
| Date | 01 June 2021 |
| Publication year | 2021 |
| Pages | 70 |
May 2021.
Kansas State Supreme Court
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ATTORNEY DISCIPLINE
ORDER OF REINSTATEMENT
IN RE KEVIN P. SHEPHERD
NO. 120,875-MARCH 4, 2021
FACTS: In September 2019, the court suspended Shepherd's license to practice law for two years but gave him permission to apply for reinstatement after one year. Shepherd filed his petition for reinstatement after one year and went through a reinstatement hearing before a panel of the Kansas Board for Discipline of Attorneys. After the hearing, the panel recommended that Shepherd's petition for reinstatement be granted, subject to three years' supervised probation.
HELD: After carefully considering the record, the court accepts the panel's findings and recommendation and grants Shepherd's petition for reinstatement, subject to three years' supervised probation. The probation will continue until it is specifically discharged by the court.
ORDER OF DISBARMENT
IN RE LAWRENCE W WILLIAMSON, JR.
NO. 21,282-APRIL 19, 2021
FACTS: In a letter received by the Clerk of the Appellate Courts on March 9, 2021, Lawrence W. Williamson, Jr. surrendered his license to practice law in Kansas. At the time of surrender, Williamson's license was suspended for failure to pay attorney registration fees and there were 13 complaints pending with the Disciplinary Administrator.
HELD: The Court accepts Williamson's surrender, and he is disbarred.
JUDICIAL DISCIPLINE
ONE-YEAR SUSPENSION
IN RE F. WILLIAM CULLINS
NO. 122,565-FEBRUARY26, 2021
FACTS: Judge Cullins is a district judge in the Fourteenth Judicial District. A panel of the Commission on Judicial Qualifications found that Judge Cullins violated Canon 1, Rule 1.2 (Promoting Confidence in the Judiciary) and Canon 2, Rules 2.3 (Bias, Prejudice, and Harassment) and 2.8. (Decorum, Demeanor, and Communication with Jurors). The behavior which triggered the complaints included the frequent use of profanity, often targeted towards courthouse staff in a way that seemed aggressive and frightening. Judge Cullins also used gendered language in derogatory ways. There were also allegations that Judge Cullins made statements that showed racial bias.
DISCIPLINE PANEL: After hearing testimony, the Panel concluded that an admonishment or cease and desist disposition was insufficient discipline for Judge Cullins's actions. But the Panel also decided that removal from the bench inappropriate; there was testimony that Judge Cullins ran efficient dockets and was a good judge who made fair determinations. The Panel concluded that the appropriate discipline was public censure, with an additional proviso that the Supreme Court refrain from ever appointing Judge Cullins as chief judge of his district. It was also recommended that Judge Cullins receive two years of professional coaching to improve his interpersonal interactions. Judge Cullins filed exceptions to the panel's final report and suggested that admonishment or a cease- and-desist order were appropriate discipline.
HELD: After an exhaustive review of the record and the parties' briefs, the Hearing Panel's findings were affirmed or conclusively established. Of note were the findings regarding gender bias. A majority of the Court concluded that any gendered language used by Judge Cullins while he was in the courthouse was done in his official capacity as a district judge. The language did not need to be used in his chambers or on the bench to constitute a violation of Canon 2. A minority of the court would find that gendered language towards certain women was not indicative of bias towards all women. The court also found that Judge Cullins's comments to two Black criminal defendants created a reasonable perception of racial bias, in violation of Canon 2, Rule 2.3. The court concluded that the appropriate discipline was suspension from sitting as a judge for one year. If Judge Cullins wants a shorter suspension, he must formulate a plan of appropriate counseling and training. The training must include instruction on supervising employees and how to avoid harassment. If the plan is approved, all or part of the suspension beyond 60 days will be stayed.
CIVIL
APPELLATE PROCEDURE; HABEAS CORPUS JOHNSON DISTRICT COURT - COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART; DISTRICT COURT IS AFFIRMED
ELLIE V. STATE
NO. 120,030-MARCH 5, 2021
FACTS: Ellie was convicted of three high-level person felonies. After his conviction was affirmed on direct appeal, he filed a K.S.A. 60-1507 motion for relief from conviction. Ellie's primary argument was that his trial counsel had both personal and financial conflicts of interest that adversely affected his performance at trial. At a hearing, trial counsel - who entered the case to serve as local counsel for the pro hac vice Missouri attorney who Ellie retained - testified that he stayed on and represented Ellie for free in order to protect the Missouri attorney who left the case after his pro hac certification was withdrawn. Trial counsel acknowledged that Ellie needed more help than he could provide and knew that he should have withdrawn. The district court found both an actual conflict of interest and prejudicially ineffective assistance and set aside Ellie's convictions. The State appealed and the Court of Appeals affirmed the district court's reversal of two of Ellie's convictions but reversed on the third, finding that overwhelming evidence against Ellie precluded reversal. Ellie petitioned for review and the State cross-petitioned.
ISSUES: (1) Whether the State properly preserved any appellate issue
HELD: Ellie correctly noted in his petition for review that the Court of Appeals failed to address - and thus did not overturn -the district court's decision that trial counsel's financial conflict of interest was presumed prejudicial and required reversal of all three of Ellie's convictions. The State failed to preserve for appeal any discussion of whether the district court could assume prejudice from trial counsel's conflicts of interest. The district court correctly ruled that all three of Ellie's convictions must be reversed.
STATUTES: K.S.A. 60-1507
DUE PROCESS; SEX PREDATORS JOHNSON DISTRICT COURT - COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART; DISTRICT COURT IS AFFIRMED IN RE QUILLEN
NO. 120,184-MARCH 5, 2021
FACTS: After he served his prison term for various sex offenses involving children, Quillen stipulated that he was a sexually violent predator. He was civilly committed to the Larned State Security Hospital Sexual Predator Treatment Program. Quillen is entitled to an annual review of his mental condition to see if he qualifies for transitional release to a less-restrictive placement. In 2013, Quillen contested his annual report and requested a hearing to see if he qualified for conditional release. Ultimately, the district court held a bench trial and, after hearing testimony, determined that Quillen's mental state remained such that it would not be safe to place him in transitional release.
Quillen again moved for conditional release in 2017, after he suffered a stroke and was left with physiological changes including partial paralysis. The issue was heard by a jury, who found that Quillen was not safe to be placed in transitional release and should remain at Larned. Quillen appealed, claiming that some of the jury instructions violated his due process rights. The Court of Appeals agreed, holding that the jury should have been instructed that the State had the burden to prove beyond a reasonable doubt that Quillen had serious difficulty controlling his behavior. The panel vacated the verdict and remanded for a new trial. The State's petition for review was granted.
ISSUES: (1) Due process sufficiency of the jury instructions
HELD: Substantive due process requires the State to show at a transitional release hearing that Quillen suffers a mental abnormality which makes it difficult for him to control his behavior, such that he poses a danger to the community. After the initial sexually violent predator determination, the statute requires the State to prove that Quillen continues to have a mental abnormality which renders him dangerous to the community, but it need not meet the same standard of proof that is required for the initial commitment. Given this finding, the jury instructions at Quillen's trial were proper. The jury was instructed that it must find that Quillen has serious difficulty controlling his behavior.
STATUTES: K.S.A. 2019 Supp. 59-29a02(b), -29a02(c), -29a07(a), -29a08(a), -29a08(d), -29a08(g); K.S.A. 2017 Supp. 59-29a02(a), -29a07(a)
DUE PROCESS; JUVENILE ADJUDICATIONS CLAY DISTRICT COURT - AFFIRMED
IN RE WRONGFUL CONVICTION OF M.M.
NO. 121,936-MARCH 12, 2021
FACTS: As a juvenile, M.M. was wrongly found guilty of aggravated indecent liberties. He sought compensation under K.S.A. 2019 Supp. 60-5004 for his wrongful 226-day confinement. But the district court denied his claim, holding that there is no statutory mechanism to provide compensation for juveniles wrongfully found guilty in a juvenile adjudication. M.M. appeals.
ISSUES: (1) Whether K.S.A. 2019 Supp. 60-5004 allows compensation for individuals wrongly found guilty in a juvenile adjudication
HELD: There is no reason to depart from general rules of statutory construction. K.S.A. 2019 Supp...
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