Decision: Moser v. KDoR

August 28th. The Kansas Supreme Court has issued its opinion in Moser v. Kansas Department of Revenue (No. 96,734) an appeal from a suspension of a driving license. In a unanimous opinion, written by Justice Lee Johnson, the court held that an administrative appeal against a driving license suspension must be filed within 10 days of the suspension, or be procedurally blocked from further relief.

Brandon Moser was in a car accident and police suspect him of DUI. He refused a breath test. This was not the first time this had happened. Given all this, his license was suspended by the police officer attending the scene, who filled out a form notifying Moser that in 30 days his license would be suspended for 10 years, absent his appealing. Moser did not file an administrative appeal, and outside the 10 day period to do so filed a suit in District Court seeking to overturn his suspension on the grounds that the 10 year suspension was excessively penal.

The District Court heard his motion, because it was filed within 30 days of the suspension notice. The Court found that in this case the 10 day rule did not apply and that a separate 30 day rule did. The Court then rejected Moser’s case on the grounds that he had not used up his administrative remedies.

Moser appealed the latter part, the Department of Revenue appealed the ruling about the 30 day rule applying. The Court of Appeals held that the 10 day rule applied but affirmed the District Court’s ruling that it could not reach the merits of the case. Moser appealed to the Kansas Supreme Court.

The Kansas Supreme Court agreed with the Court of Appeals. It found that the District Court’s ruling that the 30 day appeal period applied was not supportable based on the plain reading of the statute. The 10 day rule is the one which applies. Therefore it found that there was no jurisdiction for the case to be heard in any court and affirmed the lower Courts’ dismissal of Moser’s actions.

Decision: Landmark National Bank v. Kesler

August 28th. The Kansas Supreme Court has issued its opinion in Landmark National Bank v. Kesler (No. 98,489), a complex foreclosure proceeding. In a unanimous opinion, written by Justice Eric Rosen, the Court held that under the circumstances of this case the second-mortgage holder could not undo the foreclosure that had been performed and settled by the first-mortgage holder, owing to the complex legal relationship between that second-mortgage holder, the property and an intermediary company.

Boyd Kesler took out two mortgages against some property in Ford County. The first was with Landmark National Bank. The second with Millenia Mortgage Company. Millenia generated its documents using Mortgage Electronic Registration Systems (MERS), which carried out the administration of the loan, but received none of the money and was not legally the owner of the loan. MERS operates a system where it stands in for lenders who provide the money and allows the trading of loan notes between different institutions.

At some point, via this process Millenia’s ownership of the note transferred (or may have transferred) to Sovereign Bank. Meanwhile Kesler went through bankruptcy proceedings and the first lienholder – Landmark – foreclosed on the property. The property was sold at auction, for more than the amount owed to Landmark and Kesler and Landmark filed a motion to settle the monies between them.

Subsequent to this, Sovereign and later MERS sought to block the foreclosure on the grounds that they (as second lienholders) had not received notification of the sale. As it transpires, Ford County never received a registration for the mortgage as belonging to anyone but Millenia.

The District Court denied this motion, and various appeals resulted. The Kansas Supreme Court rejected the appeal by MERS and Sovereign, finding that since MERS did not own the note its status in law as relates to the mortgage is tenuous. Therefore none of the criteria for setting aside the foreclosure could be met. In ruling this way the Court rejected the amicus brief filed by various financial organizations which endorsed the MERS system, saying that it must follow the law as written, notwithstanding the amicus brief’s complaint that the recording scheme stems from “seventeenth-century property law that is entirely unsuited to twentieth-century financial transactions”.

The Court also rejected a Due Process argument from MERS, finding that throughout the various proceedings it had had its arguments listened to in court and therefore had certainly received the process it was due in this case.

Decision: Landmark National Bank v. Kesler

August 28th. The Kansas Supreme Court has issued its opinion in Landmark National Bank

v. Kesler (No. 98,489), a complex foreclosure proceeding. In a unanimous opinion,

written by Justice Eric Rosen, the Court held that under the circumstances of this case

the second-mortgage holder could not undo the foreclosure that had been performed and

settled by the first-mortgage holder, owing to the complex legal relationship between

that second-mortgage holder, the property and an intermediary company.

Boyd Kesler took out two mortgages against some property in Ford County. The first was

with Landmark National Bank. The second with Millenia Mortgage Company. Millenia

generated its documents using Mortgage Electronic Registration Systems (MERS), which

carried out the administration of the loan, but received none of the money and was not

legally the owner of the loan. MERS operates a system where it stands in for lenders

who provide the money and allows the trading of loan notes between different

institutions.

At some point, via this process Millenia’s ownership of the note transferred (or may

have transferred) to Sovereign Bank. Meanwhile Kesler went through bankruptcy

proceedings and the first lienholder – Landmark – foreclosed on the property. The

property was sold at auction, for more than the amount owed to Landmark and Kesler and

Landmark filed a motion to settle the monies between them.

Subsequent to this, Sovereign and later MERS sought to block the foreclosure on the

grounds that they (as second lienholders) had not received notification of the sale. As

it transpires, Ford County never received a registration for the mortgage as belonging

to anyone but Millenia.

The District Court denied this motion, and various appeals resulted. The Kansas Supreme

Court rejected the appeal by MERS and Sovereign, finding that since MERS did not own

the note its status in law as relates to the mortgage is tenuous. Therefore none of the

criteria for setting aside the foreclosure could be met. In ruling this way the Court

rejected the amicus brief filed by various financial organizations which endorsed the

MERS system, saying that it must follow the law as written, notwithstanding the amicus

brief’s complaint that the recording scheme stems from “seventeenth-century property

law that is entirely unsuited to twentieth-century financial transactions”.

The Court also rejected a Due Process argument from MERS, finding that throughout the

various proceedings it had had its arguments listened to in court and therefore had

certainly received the process it was due in this case.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/98489.htm

Decision: Philips v. St Paul Marine & Fire

August 28th. The Kansas Supreme Court has issued its decision in Phillips v. St Paul Marine and Fire Insurance Company (No. 97,806), a coverage dispute. In a unanimous opinion, written by Justice Carol Beier, the Court held that the plain wording of KSA 40-284(c) meant that the Wyandotte County Government’s opt out of certain coverage limits carried over between one policy term and another, even though that new term was non-contiguous.

Douglas Phillips, an employee of the Unified Government of Wyandotte County and Kansas City, Kansas (Unified Government) was driving a Unified Government vehicle and was involved in an accident with a juvenile in 2003. He pursued a lawsuit for underinsured motorist benefits (UIM) against St Paul which was the insurer used by the Unified Government. In 1999 the Unified Government had taken out a policy with St Paul and opted out of (rejected) the statutorily required UIM benefits of $500,000. This policy was not renewed, but in 2003 the Unified Government again used St Paul for its insurance. This time no explicit opt out was lodged, though the Unified Government and the insurer used the same terms as previously.

Phillips was covered under the 2003 policy and argued that in the absence of the express rejection of the minimum UIM benefits that they reasserted themselves. He prevailed in the District Court which also awarded him attorneys fees. The Court of Appeals reversed, but on a split panel.

In its ruling the Kansas Supreme Court rejected Phillips argument. Noting that the statute in question states that ‘valid UIM rejection forms will remain in force and effect for “any subsequent policy” with the same insurer unless the insured requests a change in writing’. As a result, the statute was clear and unambiguous and therefore the rejection of the higher UIM benefits remained at the time of the accident.

The Court therefore held that Summary Judgment should be issued against Phillips and reversed his award of attorney’s fees.

Decision: State v. Leshay

August 28th. The Kansas Supreme Court has issued its opinion in State v. Leshay (No. 99,725), an appeal of a dismissal of drug charges in District Court. In a unanimous decision, written by Justice Lee Johnson, the Court held that the Sixth Amendment Right to Confront one’s accusers does not apply at a Preliminary Hearing to a forensic lab report, where Kansas law does not require a lab technician to testify. Note: Court of Appeals Judge Christel Marquardt served on this case, in place of former Chief Justice Kay MacFarland.

Wendell Leshay was accused of possessing Cocaine. After a Preliminary Hearing following his indictment, he moved to dismiss the charges against him on the grounds that the Kansas Bureau of Investigation (KBI) lab technician who had prepared the forensic evidence did not appear for cross-examination at the hearing. The District Court agreed, holding that the United States Supreme Court’s decision in Crawford v. Washington (2004) meant that the Confrontation Clause of the Sixth Amendment required that the technician be present.

The State appealed and the Kansas Supreme Court reversed the decision of the District Court. The court noted the U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts (2009), which made it clear that the confrontation clause applies to forensic evidence reports, but ultimately held that the Sixth Amendment Confrontation Clause does not apply at a Preliminary Hearing, rather it applies at trial. The Preliminary Hearing is a statutory creation, and therefore there is not a Constitutional obligation to allow confrontation regarding testimonial evidence introduced there.

The Court did note that there might be a Due Process argument about the inability to confront an accuser at a Preliminary Hearing. However, Leshay had not raised this argument in the District Court and therefore it was not available within the appeal.

The District Court’s dismissal of the charges was reversed and the charges reinstated. The case was then remanded back to the District Court to proceed.

Decision: State v. Trussell

August 21. The Kansas Supreme Court has issued its opinion in State v. Trussell (No. 99,411) a murder-conspiracy case that reads like something from a TV show. In a unanimous decision, written by Justice Lee Johnson, the Court affirmed Jerry Trussell’s convictions arising out of the 1997 murder of his friend and host “Punkie” Harrod.

Jerry Trussell and his wife Tammy became friends with the Harrods (Punkie and Kelly) in the 1990s. At one point Tammy left Punkie, claiming he was abusive, though a court awarded him temporary custody of their kids. She later moved back in with him after discovering she was pregnant and the divorce was abandoned. In 1997, after some conversations between the women, Kelly started having sex with Jerry in return for his agreeing to “get rid of” her husband. Later, Jerry and Tammy were evicted from their home and moved in with the Harrods. In 1997 the Jerry, Kelly and Tammy organized a scene in which Punkie and Jerry fought and Kelly shot him in the head. His body was buried in a shallow grave.

Suspicions were aroused and police interviewed the protagonists several times without success. In 2001, Tammy began telling the police different versions of the story and in 2004 she led police to the location of the grave though no body was recovered. In 2005 Jerry Trussell was tried for 1st degree murder and conspiracy but the jury failed to reach a verdict. At a subsequent trial in 2007, Jerry was convicted. Between the first trial and the second trial the District Court reversed itself over whether to admit some un-Mirandized statements given by Jerry to police in 2001, resulting in the admission of the statements.

On appeal Trussell raised several issues, which the Court dismissed quickly.

Trussell argued that the State had not presented sufficient evidence that he had intent to have Punkie killed, but the Court rejected this noting that intent can be formed quickly and the evidence before the jury was that Trussell had had ample time to form intent since the killing was planned ahead of time.

Trussell argued that a self-defense instruction should have been given to the jury even though he had not asked for one, and indeed his theory of defense had been that he was being set up as the fall guy by Tammy and Kelly. The Court held that District Courts have no obligation to proactively instruct on every possible theory of defense, especially ones which might conflict with the defendant’s own theory.

Trussell argued that his 2001 statements ought to have remained suppressed. The Kansas Supreme Court disagreed and upheld the District Court’s reasoning on the matter. Since the statements were given voluntarily and Trussell was able to leave of his own volition at any point, the Court held that this was a non-custodial interrogation and that therefore Miranda did not apply.

Trussell objected that the Prosecutor had often used leading questions and that the District Court allowed this. In fact whenever the Defense objected to the leading questions the Court had them rephrased or dropped. However, the transcript indicated that there were unobjected-to leading questions also. The Court held that it had no jurisdiction to rule on these since the Defense had not objected at trial. The Court indicated that Prosecutorial Misconduct might have been a better argument for Trussell to have made, but he hadn’t so the matter was not considered.

Trussell objected to the Trial Court’s decision to rule one witness as a hostile witness (thus able to be asked leading questions). The Kansas Supreme Court held that the Trial Court was in the right position to make that call and that the transcript showed it had considered the matter before making its ruling and therefore upheld it.

Trussell’s life sentence (without parole for 25 years) for murder and subsequent 12 year sentence for conspiracy was affirmed.

Decision: State v. Case

August 7th. The Kansas Supreme Court has issued its decision in State v. Case (No. 98,077) a sex-offender sentencing appeal. In a unanimous opinion, written by Justice Lawton Nuss, the Court vacated Christopher Case’s sentence for aggravated endangering of a child, finding that under the conditions of his guilty plea certain facts relied upon by the Judge to sentence him to 60 months of postrelease supervision violated his rights under Apprendi v. New Jersey.

Christopher Case, a registered sex-offender, caused a nine-year old girl to be placed in a a situation where here life and health were endangered and where she was lewdly touched. Case also exposed himself to the victim. The details of the crime are not included in the opinion. Case pled guilty to charges related to this in return for more serious charges being dismissed, but utilised an Alford plea. An Alford plea (based on the United States Supreme Court’s 1970 decision in North Carolina v. Alford) is one where a defendant pleads guilty but maintains his innocence.

At sentencing Case was sentenced to the term which he and the prosecutor both agreed to recommend in the plea agreement, however the Judge imposed the maximum sentence of 60 months supervision post-release. The Judge did so on the grounds that the facts in the plea agreement showed the crime was sexually motivated, which allowed for this enhancement. The Court of Appeals agreed, and affirmed the District Court, noting language in the plea agreement talking about stipulating to the facts outlined in the charge, namely that Case had committed the crime to satisfy his sexual desires.

The Kansas Supreme Court vacated the sentence. It found that under an Alford plea (which despite the language about stipulating to the offenses contained in the charge this remained) the defendant has expressly not pled guilty to the facts as alleged. Therefore, the defendant could not have waived his Apprendi right not to have a judge take into account untried facts in enhancing a sentence. Since no jury made the fact-finding that the crime was sexually motivated, Case is not eligible for the enhanced sentence. Case’s case, will be returned to District Court for resentencing.

Decision: State v. Easterling

August 7th. The Kansas Supreme Court has issued its opinion in State v. Easterling (No. 100,454) a Jessica’s Law Sentencing Appeal. In a unanimous opinion, written by Justice Lee Johnson, the Court upheld David Easterling’s sentence to life without parole for 25 years, for the molestation of his granddaughter.

David Easterling sexually abused his 5 year old granddaughter. He was reported and arrested. During his interrogation (after waiving his Miranda rights), he admitted to having abused his daughter in the same way in the 1980s. His wife admitted that she had known about this. Easterling pled guilty to his crimes, in a plea arrangement under which the Shawnee County prosecutors agreed to request a departure sentence of just under 10 years instead of the presumptive Jessica’s Law sentence. The District Court noted the information about the 1980s abuse was contained in a sworn affidavit by a the interrogating police officer. The District Court refused the durational departure, sentencing Easterling to life without parole for 25 years.

Easterling appealed on two grounds. His first argument was that the inclusion of the evidence on the affidavit breached his Due Process rights to a fair trial. His second was that the Jessica’s Law sentence was a cruel and unusual punishment.

On the first argument the Court examined prior cases and determined that there was a Due Process question to be examined, making this the first Kansas case which explicitly states that Due Process must be afforded at sentencing. The Court found that, since the affidavit was signed under penalty of perjury, by a law enforcement officer and involved admissions by Easterling and his wife that a reasonable person would not make falsely, the evidence was considered to be reliable. It concluded that he had not been denied Due Process since the Court had notified him and his Counsel that it would be looking at the affidavit and he therefore in his argument for mitigation had had an opportunity to argue against it. Therefore the District Court did not deny Easterling his Due Process rights at trial.

On the challenge to the constitutionality of the Jessica’s Law sentencing regime, the Court found that since Easterling had not objected at trial on these grounds he could not raise the matter on appeal. It did consider whether the case’s procedural posture meant that it could consider the matter anyway, but decided otherwise.

Easterling’s sentence to life in prison without the possibility of parole for 25 years was therefore upheld.

Commentary: Has the Kansas Supreme Court quietly hobbled Jessica’s Law?

On July 2nd 2009, the Kansas Supreme Court handed down State v. Bello, in which it ruled that Juan Jose Bello’s life without parole for 25 years sentence under Jessica’s Law was invalid because his age had not been presented to the Jury to be proven beyond a reasonable doubt. The relevant part of Jessica’s Law applies to those aged over 18. On July 24th it applied the same precedent in State v. Gonzales. On August 14th, it applied the same precedent in State v. Morningstar. Bello’s actual age is not clear, but press reports indicate that Gonzales was 25 years old at the time of the offenses. Morningstar was 21 and the father of the victim. All three men will be resentenced to shorter spells in prison under the Sentencing Guidelines.

The pattern which is emerging is that a defendant’s age in these cases has not normally been presented to the Jury. Therefore it may be safe to assume that just about every life without parole for 25 years sentence handed down under Jessica’s Law between that law’s taking effect in 2006 and last month will be vacated (except where appeals have already been completed or procedurally defaulted).

So far this issue has received very little press coverage. Articles have dealt with the individual cases as the decisions were handed down but there does not seem to have been much comment as to the overall impact of the ruling, which by returning this batch of cases to the Sentencing Guidelines regime effectively nullifies the intent of the Legislature that these criminals not be released for a very long time.  To be clear, this is something which individual prosecutors and Judges are in a position to correct going forwards by asking Juries to determine that the defendant is in fact over 18. However with the limited coverage of the cases it is quite possible that this is still happening, dooming further Jessica’s Law sentences.

The legal rationale for these rulings is as follows. Under the Apprendi v. New Jersey line of cases from the United States Supreme Court facts which lead to sentencing enhancements must be presented to the Jury to be determined beyond a reasonable doubt. The Kansas Supreme Court held that since age determines whether a convicted child molester receives the life without parole for 25 years sentence, that it is a fact which must be submitted to the Jury. However, Apprendi is far from a settled or uncontroversial decision. The majority cut across traditional lines, consisting of Justices Stevens, Scalia, Souter, Thomas, and Ginsburg, with Justices O’Connor, Kennedy and Breyer in dissent along with then Chief Justice Rehnquist. That Court has seen three changes of membership since the decision was handed down.

It is a little disquieting then that on the Kansas Supreme Court there was not a single dissent on this issue. It seems absurd that age would be considered a fact that needed to be proven – it is fairly obvious when someone is over the age of 18. Nothing in the State v. Bello opinion gave an indication that Bello’s age and eligibility for this sentence was in any doubt, and it would surely be possible to craft an Apprendi exception around facts which are plainly true, as indeed the Kansas Supreme Court has when it has upheld parts of the Sentencing Guidelines relating to prior convictions. Sadly, the Justice system now seems intent on mimicking grocery stores which implement rules that demand that the middle aged and elderly produce IDs before they may purchase tobacco or liquor to save their clerks the the trouble of thought.

A final comment. There are undoubtedly other crimes defined by Kansas Law in which age is a factor. In the post-Roper world the Death Penalty seems a likely candidate, but there are probably others. In extending Apprendi‘s reach in this way the Justices of the Kansas Supreme Court may have given themselves a lot more work in the years ahead.

That also assumes that the juries in trials under this law that are proceeding at present have been informed that they need to make this finding. It is quite possible that this “error” is still happening, dooming further Jessica’s Law sentences.

Decision: State v. Morningstar

August 14th. The Kansas Supreme Court has issued its decision in State v. Morningstar (No. 99,788) an appeal arising from a child abuse prosecution. In a unanimous opinion, written by Justice Dan Biles, the Court upheld the conviction of Gary Morningstar for the rape of his six-month old daughter but vacated his Jessica’s Law sentence, in accordance with the recent precedent in State v. Bello.

The background to this case is revolting and covered in the Court’s opinion which is linked here and for this reason we see no reason to repeat it in this entry. Suffice to say that the abuse Morningstar inflicted on his daughter resulted in her hospitalization and was described by a nurse who had been involved in 188 previous sex abuse cases, as the worst trauma to a child she had ever seen.

Morningstar raised three issues. The first two concerned the State’s not having presented evidence to the jury that Morningstar was over 18 which the Court has held is a required element of the automatic life without parole for 25 years sentence under Jessica’s Law. Morningstar argued that because of this his conviction should be vacated. The Court rejected this argument, holding that the lack of evidence presented concerning his age did not mean that the crime had not happened, merely that a different sentencing regime must take effect. Therefore, Morningstar succeeded on his second point, that the Jessica’s Law sentence be vacated and he be remanded for resentencing under the Sentencing Guidelines.

Morningstar’s final argument was that the prosecutor engaged in misconduct with comments he made to the Jury about how Morningstar had left the baby lying in the bath after she had sustained her injuries while he made a telephone call to his wife. The Court rejected this argument finding that the prosecutor’s comments were acceptable and that even if they had not been they would still not have risen to the level of misconduct since they were supported by substantial evidence and therefore did not prejudice his defense.

Morningstar’s original sentence was vacated and the case remanded for resentencing. He will therefore receive a more lenient sentence under the Kansas Sentencing Guidelines.

Write-ups pending

August 16th. We still have two decisions from August 7th to cover, but due to the wider impact of some recent Jessica’s Law cases and the August 14th decision in State v. Morningstar we will be covering that case first.