Appellate Decisions
| Citation | Vol. 91 No. 5 Pg. 47 |
| Pages | 47 |
| Publication year | 2022 |
September 2022.
Kansas Supreme Court
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ATTORNEY DISCIPLINE
ORDER OF DISBARMENT IN RE TIMOTHY JOHN MUIR DOCKET NO. 21793 — JUNE 23, 2022
FACTS: Muir's law license was suspended in November 2017 after he was convicted of 14 federal felonies. The complaint underlying the suspension remains pending. In a letter signed April 25, 2022, Muir voluntarily surrendered his license to practice law in Kansas.
HELD: The court accepts the surrender and ordered Muir disbarred.
ONE-YEAR SUSPENSION IN RE BRADLEY A. PISTOTNIK NO. 124,868 — JULY 8, 2022
FACTS: In a joint agreement with the Disciplinary Administrator's office, Bradley A. Pistotnik stipulated to violations of KRPC 8.4(b) criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer; 8.4(c) conduct involving dishonesty, fraud, deceit, or misrepresentation; and 8.4(g) conduct that adversely reflects on the lawyer's fitness to practice law. The Disciplinary Administrator's office voluntarily dismissed other pending allegations. The complaint arose after Pistotnik dissolved his law firm and launched a solo practice. As part of that process, Pistotnik hired an internet company to build a new website and manage his internet presence. As part of this management, the contractor illegally targeted websites which contained negative reviews of Pistotnik. When asked about this management, Pistotnik initially denied knowledge. He was eventually indicted by a federal grand jury for 10 felony counts related to this online targeting. Pistotnik eventually pleaded guilty to three lesser, misdemeanor charges. He self-reported the incident to the Disciplinary Administrator.
HEARING PANEL: The panel noted that Pistotnik's Oklahoma law license was suspended for two years and one day with a reinstatement hearing required. The parties stipulated here that no clients were harmed by this misconduct, although there was harm caused to an online entity. The hearing panel noted aggravating factors including prior discipline and these misdemeanor felony convictions. Mitigating factors included health problems, the dissolution of his prior law firm, and cooperation with the disciplinary process. The Disciplinary Administrator and Pistotnik jointly recommended discipline of a one-year suspension, with a reinstatement hearing prior to reinstatement. The hearing panel agreed this was appropriate discipline.
HELD: There were no exceptions filed and the hearing report is deemed admitted. The hearing panel's findings of fact are supported by clear and convincing evidence. The court agreed with the suggested discipline of a one-year suspension with a hearing prior to reinstatement.
ORDER OF DISBARMENT IN RE TROY DOUGLAS RENKEMEYER DOCKET NO. 17913 — JULY 6, 2022
FACTS: In September 2020, Renkemeyer was charged with one count of breach of privacy. That charge remains pending, along with the disciplinary complaint that accompanied the criminal charge. In a letter signed June 14, 2022, Renkemeyer voluntarily surrendered his license to practice law in Kansas.
HELD: The court accepts the surrender and finds that Renkemeyer should be disbarred.
ONE-YEAR SUSPENSION, STAYED PENDING PROBATION IN RE DAVID S. WHINERY NO. 124,958 — JULY 15, 2022
FACTS: Whinery and the disciplinary administrator entered a summary submission agreement under Supreme Court Rule 223. Under that agreement, Whinery stipulated to violations of KRPC 1.2 (scope of representation); 1.3 (diligence); 8.4(d) (conduct prejudicial to the administration of justice); and 8.4(g) (conduct that adversely reflects on fitness to practice law). A complaint was filed against Whinery by a client, who claimed Whinery was verbally and physically aggressive while the client was in custody. The scene was witnessed by law enforcement, who intervened to protect the client. The judge learned of the interaction and replaced Whinery as counsel. There were also allegations that Whinery failed to explain the meaning of a preliminary hearing and the consequences of Whinery being named power of attorney for the client.
HEARING PANEL: The panel found that Whinery failed to clearly define his scope of representation, especially with respect to the power of attorney. The panel also believed Whinery's interaction with his client was unprofessional and it created delay when new counsel had to be appointed. Aggravating factors included prior discipline, the pattern of misconduct, and the vulnerability of his client. Mitigating factors included the absence of a dishonest or selfish motive, cooperation during the disciplinary process, and genuine remorse. Whinery and the disciplinary administrator jointly recommended a one-year suspension with the imposition of that suspension stayed while Whinery completes an 18-month probation period.
HELD: The court accepted the summary submission of facts and a majority of the court found that all charged conduct was supported by clear and convincing evidence. A minority of the court would have found insufficient evidence to support violations of KRPC 8.4(d) and (g). A majority of the court accepted the recommended discipline. A minority of the court would have imposed lesser discipline.
CIVIL
LEGISLATIVE ACTION
IN RE VALIDITY OF SUBSTITUTE FOR SENATE BILL 563
ORIGINAL ACTION — ENACTMENT HELD AS VALID NO. 125,083 — JUNE 21, 2022
FACTS: After the 2020 census was completed, the Kansas Legislature held a listening tour as it prepared for the process of redistricting. As part of this process, the Legislature consulted the Proposed Guidelines and Criteria for 2022 Kansas Congressional and State Legislative Redistricting, which were meant to provide calculations for the correct population metrics for districts. Both chambers of the Legislature eventually considered and approved Substitute for Senate Bill 563. Sub. for SB 563 was signed by the governor and published in the Kansas Register. As required by Article 10, Section 1(b) of the Kansas Constitution, Attorney General Schmidt petitioned the Supreme Court to determine the validity of Sub. for SB 563. The court received feedback from the public and Senator Holland was allowed to intervene.
ISSUE: (1) Validity of Sub. for SB 563
HELD: To determine validity, the court makes sure the proper procedure was followed and that the act satisfies constitutional requirements. Specifically, the court ensures the act complies with "one-person, one-vote" requirements and that it does not invidiously discriminate. After reviewing the record, it is clear that all necessary procedural steps were taken, and Sub. for SB 563 was properly approved in open meetings. A failure to strictly follow the guidelines does not invalidate the reapportionment. Sub. for SB 563 is also substantively valid. Both the House and Senate maps follow the one-person, one-vote principle. And there is no credible allegation that any of the maps were intentionally drawn to adversely affect any protected class. The reapportionment need not be perfect to be constitutionally valid.
STATUTES: 52 U.S.C. § 10301 (2018); Kansas Constitution Article 10, section 1
VOTING RIGHTS RIVERA V. SCHWAB WYANDOTTE DISTRICT COURT — REVERSED AND INJUNCTION LIFTED NO. 125,092 — JUNE 21, 2022
FACTS: After completion of the 2020 census, the legislature passed, over Governor Kelly's veto, Substitute for Senate Bill 355, which contained the Ad Astra 2 congressional map. Before passage of the bill, the Legislature conducted listening tours and virtual meetings. The Legislature also consulted the Proposed Guidelines and Criteria for 2022 Congressional and State Legislative Redistricting, which are meant to aid in determining proper district size and other priorities. A group of plaintiffs sued in both Wyandotte and Douglas counties, seeking to enjoin the use of Sub. for SB 355 in the upcoming elections. Both sets of plaintiffs claimed the bill is a partisan and racial gerrymander that dilutes minority votes. In addition, the Douglas County plaintiffs claimed that adding Lawrence to the 1st District was an impermissible partisan gerrymander. The district court found that Sub. for SB 355 violated the Kansas Constitution as both a partisan and racial gerrymander, holding that the Legislature did not follow requisite procedural steps before passing the bill. The State appealed.
ISSUES: (1) Does the Elections Clause bar state courts from reviewing reapportionment legislation; (2) Standards of review and governing law; (3) Are claims of partisan gerrymandering justiciable; (4) Whether Ad Astra 2 discriminates against minority voters
HELD: The Elections Clause is not a jurisdictional bar to review of reapportionment legislation. Anti-gerrymandering claims flow from the Equal Protection Clause in general and Section 2 of the Kansas Constitution Bill of Rights in particular. Any consideration of political gerrymandering is subject to justiciability questions under the political question doctrine. The court has consistently held that a legislature may consider partisanship when drawing district lines. In fact, the redistricting process is intended to have substantial political consequences. Given this political nature, claims of excessive partisan gerrymandering are nonjusticiable in Kansas. Section 2 of the Kansas Constitution Bill of Rights protects against racial gerrymandering and targeted minority voter dilution. To succeed, a plaintiff must prove that race was the predominant factor...
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