Appellate Decisions

• Year: 2024
• Citation: Vol. 93 No. 5 Pg. 57
• Pages: 57
• Date: 01 October 2024

Appellate Decisions No. 93 J. Kan. Bar Assn 5, 57 (2024) Kansas Bar Journal October, 2024

Appellate Decisions

Kansas Supreme Court

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ATTORNEY DISCIPLINE

ORDER OF SUSPENSION IN RE MAUGHAN

NO. 127,196 — JUNE 14, 2024

FACTS: At a disciplinary hearing, Carl F.A. Maughan stipulated to violating KRPC 1.7 (concurrent conflict of interest), KRPC 1.8 (entering business transaction with client or acquiring interest adverse to client), KRPC 1.15 (holding client property separate), and KRPC 8.4(d) (engaging in conduct prejudicial to administration of justice). The hearing panel considered evidence of aggravating and mitigating factors, and concluded Maughan should be suspended for six months with 12 months of probation under a proposed probation plan. At oral argument the disciplinary administrator instead recommended a one-year suspension with a required reinstatement hearing because of Maughans failure to comply with Supreme Court Rule 227(f)(2).

HELD: The Court accepted the panels factual findings and conclusions of law based on respondents stipulation and found the appropriate sanction was to suspend Maughans license for one year with the requirement that he undergo a reinstatement hearing.

ORDER OF SUSPENSION IN RE SAMSEL

NO. 127,197 — JUNE 14, 2024

FACTS: Mark A. Samsel entered a summary submission agreement under Supreme Court Rule 223(b), stipulating that he violated KRPC 8.4(b) (misconduct — criminal act reflecting adversely on fitness); KRPC 8.4(e) (misconduct — ability to influence improperly); and KRPC 8.4(g) (misconduct — reflecting adversely on fitness to practice law). Under the agreement, Samsel agreed to serve a suspension of his license for a period of 12 months, stayed for a probation term of 12 months.

HELD: The Court accepted the panel's factual findings and conclusions of law based on Samsel's summary submission agreement. However, the Court concluded the appropriate discipline is a two-year suspension of Samsel's license from the practice of law, stayed for a two-year probation term.

CIVIL

CONSTITUTIONAL LAW; RIGHT TO ABORTION HODES &NAUSER, MDS V. KOBACH

SHAWNEE DISTRICT COURT — AFFIRMED

NO. 124,130 — JULY 5, 2024

FACTS: In 2015, the Kansas Legislature enacted SB 95, a law that banned the dilation and evacuation method of abortion except when necessary to preserve the mother's life or to prevent a substantial and irreversible physical impairment of a major bodily function to the mother. Before the law could go into effect, Herbert C. Hodes, M.D., Traci Lynn Nauser, M.D., and Hodes &Nauser, MDs, P.A., (Providers) challenged its constitutionality under sections 1 and 2 of the Kansas Constitution's Bill of Rights. Over the State's opposition, the district court granted a temporary injunction. The State appealed. The Kansas Supreme Court affirmed the temporary injunction, ruling that section 1 of the Kansas Constitution's Bill of Rights protects a fundamental right to personal autonomy that includes the right to continue or terminate a pregnancy. Hodes &Nauser, MDs v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019). Thus, the Kansas Supreme Court remanded to the district court with instructions to decide the case on the merits and allow both sides to present evidence and arguments on their respective positions. On remand, the district court granted summary judgment in favor of Providers, concluding that the uncontroverted facts showed SB 95 did not withstand strict scrutiny and violated section 1 of the Kansas Constitution's Bill of Rights. Thus, the district court entered a permanent injunction restraining the State from enforcing them. The State appealed.

ISSUES: (1) Whether the district court erred in finding the State failed to show SB 95 was constitutional

HELD: (1) The Kansas Supreme Court reaffirmed its holdings that section 1 of the Kansas Constitution protects a right to abortion and that SB 95 violates that right under the law-of-the-case doctrine. The majority also determined the district court did not err in finding the State had failed to establish SB 95 was narrowly tailored to further a compelling government interest.

CONCURRENCE: (Wilson, J.) Concurred in the judgment but wrote separately to explain that SB 95 is unconstitutionally vague.

DISSENT: (Stegall, J.) Disagreed with the majority's analysis and conclusion that section 1 of the Kansas Constitution provides a right to abortion.

STATUTES: K.S.A. 65-6732(a)-(b), -6741, -6741(a)

CONSTITUTIONAL LAW; RIGHT TO ABORTION HODES & NAUSER, MDS V. STANEK SHAWNEE DISTRICT COURT — AFFIRMED

NO. 125,051 — JULY 5, 2024

FACTS: Hodes & Nauser, MDs, P.A., (Providers) operates a medical practice that provides obstetrical and gynecological care, including abortion care, as a medical office under Kansas Board of Healing Arts regulations. In 2011, the Kansas Legislature enacted SB 36, which created a new licensing requirement for medical facilities that provide abortion care under the Kansas Department of Health and Environment. After the KDHE adopted temporary regulations to carry out SB 36, Providers sued in federal court challenging its constitutionality, which resulted in a preliminary injunction. After that preliminary injunction expired, Providers dismissed their federal suit, and KDHE adopted permanent regulations. Before the permanent regulations took effect, Providers filed this case in state court challenging the constitutionality of SB 36 and the permanent regulations. The district court entered a temporary injunction, and the parties agreed the State would not enforce SB 36 or the KDHE regulations pending final judgment Then in 2015, the Legislature repealed part of the statutory scheme of SB 36 and replaced it with an amended version that required a prescribing physician to be physically present in the same room as the patient when a drug is administered to induce an abortion. Following the Kansas Supreme Courts decision in Hodes &Nauser, MDs v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019) (Hodes I), the parties filed competing motions for summary judgment. After oral arguments, the district court entered an order denying the States motion and granting Providers' motion, finding SB 36 and the later amendments violated section 1 of the Kansas Constitution. Thus, the district court entered a permanent injunction restraining the State from enforcing them. The State then moved to alter or amend, arguing the Providers lacked standing to challenge the amendments, which the district court denied. The State appealed.

ISSUES: (1) Whether the Providers had standing to challenge the constitutionality of amendments to K.S.A. 65-4al0; (2) Whether the district court erred in granting summary judgment for Providers and striking down the challenged laws as unconstitutional

HELD: (1) The Providers had standing to bring a preenforcement challenge. (2) The district court correctly determined that Providers met their burden to show the challenged laws actually infringed on a woman's right to abortion and violated section 1 of the Kansas Constitution under Hodes I. The majority further held the State failed to present evidence to survive the strict scrutiny analysis. The district court also did not err in striking down the statutory scheme in its entirety, despite the statute's severability clause, because it would be improper to sever only the objectionable provisions.

CONCURRENCE: (Rosen, Biles, Wilson, JJ.) Concurred separately to the judgment.

DISSENT: (Stegall, J.) Argued the majority departed from its precedent in Hodes I and warned about the potential implications in future cases involving infringements on the fundamental right of personal autonomy.

STATUTES: K.S.A. 65-4a01(g); K.S.A. 65-4a02(a), (g); K.S.A. 65-4a06(a), (f); K.S.A. 65-4a07; K.S.A. 65-4a08(a), (c); K.S.A. 65-4a09(d)(3)-(5), (e), g(3), (4), (8); K.S.A. 65-4al0(b)(1), (c), (d); K.S.A. 65-2836(b); K.S.A. 2014 Supp. 65-4al0; K.S.A. 2015 Supp. 65-4al0

MOOTNESS; ZONING REGULATIONS AMERICAN WARRIOR, INC. V. BOARD OF FINNEY COUNTY COMM'RS

FINNEY DISTRICT COURT — AFFIRMED

COURT OF APPEALS — REVERSED

NO. 124,998 — JULY 26, 2024

FACTS: American Warrior, Inc., and Brian Price (collectively American Warrior) sued the Finney County Commission and Huber Sand, Inc., after the Finney County Zoning Board approved Huber's application for a conditional use permit to operate a sand and gravel quarry. American Warrior argued the local procedure for issuing the permit violated K.S.A. 12-757, which requires permit applications be reviewed by the county planning commission before the board of county commissioners considers it. The district court granted summary judgment in favor of the County and Huber, finding the County properly delegated its power to issue conditional use permits to the zoning board. The Court of Appeals reversed, with a majority of the panel finding the County's local procedure conflicted with K.S.A. 12-757 under Kansas Supreme Court precedent. Chief Judge Arnold-Burger dissented. The County and Huber filed a petition for review.

ISSUES: (1) Whether the appeal was moot because the conditional use permit expired; (2) Whether the County had the authority to delegate issuance of conditional use permits to the zoning board

HELD: (1) The appeal was not moot because the relevant zoning regulation provided that the conditional use permit would be valid for at least a year but could extend beyond that year if the project is substantially completed. (2) K.S.A. 12-757 does not preempt a county's issuance of...