Archive for February, 2009

Legislature moves to override Court

February 28, 2009

February 28th. The Kansas Legislature is moving to overturn the Kansas Supreme Court’s decision in State v. Prine, a child sex abuse case which was decided in January. Under that decision, over a dissent by then Chief Justice Kay McFarland, the court held that prior acts of sexual misconduct by the accused could only be introduced as evidence to prove intent if the prior acts and the ones charged were “so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature”.

Under the proposed new law, prosecutors would be able to introduce this kind of evidence provided they gave ten days notice to the Defense Counsel and the evidence met any of a broad list of descriptive categories. The Court’s rule that the modus operandi be a signature one is eliminated. It should be noted that the kind of conduct engaged in by John Prine is explicitly listed as one of the admissable circumstances. This approach is broader than simply codifying McFarland’s dissent into law. If passed and signed into law the Act would not be retroactive, however any new trials ordered under Prine would presumably be subject to the new rule.

Legislative status.
The bill is House Bill (HB) 2250, introduced by Lance Kinzer, an Olathe Republican. It passed the House on February 19th, by a vote of 122-1. Only Rep. Schwab (R-Olathe) voted against (two other Republicans did not vote).

The text of the bill is here. Details of the House vote are here.


This week at the Kansas Supreme Court

February 27, 2009

February 27th. The Kansas Supreme Court issued no opinions this week. Opinions can be issued at any time, but are normally released on Fridays.

This week at the Kansas Supreme Court

February 20, 2009

February 20th. The Kansas Supreme Court issued no opinions this week. Opinions can be issued at any time, but are normally released on Fridays.

Decision: Harsch v. Miller

February 13, 2009

February 13th. The Kansas Supreme Court has issued its opinion in Harsch v. Miller (No. 100,149) a procedural appeal arising out of an eminent domain proceeding. In a unanimous opinion, written by Justice Nuss, the Court affirmed a Coffey County District Court ruling, dismissing Doyle Harsch’s appeal against the  appraiser’s valuation of his land on the grounds that Harsch and his attorney did not appear on the date set for the civil trial. A ruling of the District Court sanctioning Harsch’s attorney and imposing costs upon him based on a finding of contempt of court in the case was overturned. Note: The “Miller” of the case title is Debra Miller, Kansas Secretary of Transportation. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Stephen Hill of the Court of Appeals.

In 2007, KDOT instituted eminent domain proceedings to acquire part of Doyle and Lea Harsch’s land. The Harsches began several legal proceedings to fight this. They appealed the appraiser’s valuation to District Court, began a constitutional claim in District Court and filed another constitutional claim in Federal District Court. They withdrew the State constitutional case. In the midst of this, they filed a motion with the District Court hearing their valuation appeal to stay the case, pending the outcome of their constitutional appeals. The District Court denied their motion. As the date of the jury trial on their appraisal appeal approached the Harsches filed an appeal of the denial of stay with the Court of Appeals. While the Court of Appeals asked them to show why the appeal should not be dismissed as interlocutory (i.e. filed before the lower Court had concluded the case, something there are specific procedures to follow if desired and which is rarely granted), it set a date on which it would rule on their appeal after the date on which the jury trial was to take place.

The District Court proceeded towards the jury trial, while the Harsches and their attorney argued that it could not do this while the Court of Appeals was considering their appeal of the denial of stay. The District Court ruled that it retained jurisdiction in the case, and the Harsches and their attorney announced they would not attend the trial since they argued that the District Court did not and the trial would therefore be a nullity. They carried out their threat, and on the day of the trial the District Court dismissed their appeal and confirmed the appraiser’s valuation. It also sanctioned their attorney, Mark Rockwell, for several thousand dollars in costs of the abandoned trial. A few days later the Court of Appeals dismissed the Harsch’s appeal of the denial of stay. Their Federal case is scheduled for trial in June of this year.

In their appeal the Harsches repeat their argument that the District Court lacked jurisdiction at the scheduled time of the jury trial to hear the case. Some background on rules of appeal in civil cases is necessary to the Supreme Court’s rejection of their argument. Appeals are governed by statute. In civil cases, such as this one, they may only be brought at the conclusion of a lower court proceeding, or as an interlocutory appeal through a particular procedural process. Interlocutory appeals are rarely granted and those that are not filed through the defined process are always dismissed. One exception to this rule is a narrow group of appeals under the collateral order doctrine, which allows interlocutory appeals of District Court rulings that have a degree of finality to them, cover significant legal issues and which would not be possible to preserve for the regular appeals process if the appellant waited. The Harsch’s argued that their appeal fell into this category. The Court rejected this argument, and emphasizing the Legislature’s goal that cases not be tried piecemeal and be concluded as speedily as possible noted several alternative approaches the Harsch’s had opted not to use (such as following the procedure for filing an interlocutory appeal in the prescribed manner). The Court found no grounds that the filing of the Harsch’s appeal of the denial of stay would have removed the District Court’s jurisdiction (in effect getting them the stay they had been denied by simply filing a motion in the higher court), and therefore found that the District Court acted within its discretion in proceeding with the jury trial.

The Kansas Supreme Court overturned the finding that the Harsches and their attorney were in contempt of court by not showing up for trial. It did so on a technicality. Under the Statute cited by the District Court in its contempt ruling, the Court journal is required to include a statement of why they were found in contempt, the sanctions applied and a description of the defendants reason or excuse for the behavior found in contempt. Despite Rockwell’s having made his jurisdictional argument to the District Court when he said the Harsches would not be attending the trial, this information was not included in the journal. Therefore the contempt citation is invalid and was vacated by the Supreme Court along with the fees Rockwell had been ordered to pay.

February 13th Unpublished Opinions

February 13, 2009

February 13th. The Kansas Supreme Court has issued 11 unpublished opinions. One published opinion was issued today, and we will be covering it later tonight. The unpublished opinions were:

Docket Number / Case Name / Judge / Disposition / County
98,014 — State v. Foster — Per Curiam — Affirmed — Sedgwick.
99,343 — State v. Hamilton — Per Curiam — Affirmed in part and dismissed in part — Harvey.
99,490 — State v. Thomas — Per Curiam — Affirmed in part and dismissed in part — Shawnee.
99,598 — State v. Farr — Per Curiam — Dismissed — Shawnee.
99,801 — State v. Gonzales — Per Curiam — Dismissed — Sedgwick.
99,874 — State v. Moyers — Per Curiam — Affirmed in part and dismissed in part — McPherson.
100,040 — State v. Smith — Per Curiam — Affirmed — Saline.
100,044 — State v. Woodward — Per Curiam — Affirmed in part and dismissed in part — Bourbon.
100,118 — State v. Andrews — Per Curiam — Affirmed — Sedgwick.
100,302 — State v. Whiting — Per Curiam — Affirmed — Barton.
100,490 — State v. Corcoran — Per Curiam — Affirmed in part and dismissed in part — Butler.

Unpublished opinions are supposed to be those where the case turns on the straightforward application of existing law. Though widespread, the practice is not without controversy – it has been criticized elsewhere for allowing courts to hide ’stinkers’ as well as being unnecessary in the age of the internet where the size of printed materials is no longer a constraint. These cases are not available online. If anyone is aware of any controversy surrounding them, please contact this blog and we will investigate.

Chief Justice Davis on the State of the Judiciary

February 12, 2009

February 10th. Chief Justice Robert Davis delivered his first State of the Judiciary speech to a joint session of the Legislature. He was joined by his five fellow justices and soon to be Justice Biles. Davis gave his speech a few weeks after he succeeded former Chief Justice Kay McFarland upon her retirement. The full text of his address is available here, and an audio file is available here.

Davis’ speech touched upon three themes which he described as Justice, Efficiency and Affordability. In a time of budgetry constraint this was not a surprise. Davis noted that due to the way the Court system is structured in Kansas the money the Legislature pays to the judicial branch is almost entirely salaries, which makes it hard for any budget savings to be arrived at there without a significant impact on the workings of the Courts. He did note that most of the administrative costs of the court system are paid for by the counties and that the court was working on technological solutions to lower those costs through better document management and electronic publication of court materials. He also noted that the courts would soon be able to take credit and debit card payments for filing fees.

Davis also noted that the number of pro-se litigants was increasing and that these cases end up taking more court time and face more procedural problems. As a result of this, and in an attempt to reduce the expense this creates, the court had established a study committee to help these kind of litigants.

These kinds of speech are generally congenial affairs. The only mild controversy within the speech was Davis’ mention of the Kansas Commission on Judicial Performance which provides ratings on Judges prior to retention or general elections. The Commission has been criticized by some as a way for the courts to provide more advantages to incumbent judges, and for endorsing every judge it reviewed in 2008.

Decision: Double M Construction v. Kansas Corporation Commission

February 11, 2009

February 6th. The Kansas Supreme Court has issued its decision in Double M Construction v. Kansas Corporation Commission (No. 100,312). In a unanimous opinion, written by Justice Rosen, the Court upheld the Commission’s imposition of a $25,000 fine upon Double M for failing to follow the law that governs excavations near underground gas lines. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

A company called Double J Pipeline subcontracted some Labette County excavation work to Double M Construction, an Oklahoma-based firm. Under the contract between the two companies  Double M was not to be responsible for any damage to underground utilities. Double J called the Kansas One Call system to notify of intent to excavate and arrange for underground lines to be marked, as required under the Kansas Underground Utility Damage Prevention Act (KUUDPA). Due to an error, the wrong area was marked by Kansas One Call. Double J called again and Kansas One Call arranged to mark the correct area. Before Kansas One Call had done so Double J directed Double M to begin digging the unchecked area. Double M struck a gas line and a worker was killed. The Kansas Corporation Commission assessed a $25,000 penalty upon Double M for failing to follow the KUUDPA, on the grounds that it states that the excavator must notify Kansas One Call of its intent to excavate.

On appeal to the District Court (where the Commission’s verdict was affirmed) and the Kansas Supreme Court, Double M claims that it was not liable for the failure to notify Kansas One Call, and the events that followed because that was Double J’s responsibility under its contract. It also argued that even if the statute applied to it, that this interfered with its right to contract which is protected under the Due Process clause of the Fourteenth Amendment. Double M also argued that the law was inequitable since as an Oklahoma company it was unaware of it, and argued that at common law liability rests with the main contractor and not the subcontractor(s).

The Court rejected all these arguments. It notes that its ruling is driven by the plain language of the KUUDPA which (apart from an exception for private home owners on their own property) requires that any excavator notify Kansas One Call. Since Double M was an excavator under the meaning of the act, it and no one else, was required to make the phone call. Since it did not do that it is liable. Double M’s argument about common law liability is rejected since the legislature can override common law by statute, and therefore that is inapplicable. Double M’s argument about the law being inequitable is rejected since all persons are presumed to know the law: ignorance is not a defense. Finally, Double M’s Constitutional argument (which seems to have been based on Lochner-era concepts) is rejected: the legislature has the right to pass laws which govern what contracts may legally be signed. If that were not enough, it notes that the contract was entered into after the passage of the act. Freedom of Contract does not extend to being able to enter into a contract that rewrites the law.

Justice Rosen has fun with all this with the following quip:

“Double M would have this court find that a corporation that specializes in excavation, enters into a contract to excavate, and then carries out an excavation is not really an excavator under the statute. It proposes that a creature that looks like a duck, walks like a duck, and quacks like a duck is not a duck if it contracts with a goose to assume the duties and liabilities of a duck.”

Having rejected all of Double M’s argumencts, the Court affirms the Corporation Commission’s ruling, noting that because Double M did not follow the plain, unambiguous wording of the law and do the Kansas One Call notifications itself an accident resulting in property damage and death occurred: precisely what the law was enacted to prevent.

Decision: State v. Salts

February 10, 2009

February 6th. The Kansas Supreme Court has issued its opinion in State v. Salts (No. 99,533) an appeal against a child abuse conviction on the grounds of erroneous jury instructions. In a unanimous opinion, written by Justice Beier, the Court found an error in one of the standard pattern jury instructions, but found it was insufficient to reverse the late Alan Salts’ conviction for indecent liberties with a child. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

Alan Salts met a 15 year old (K.D.) at a gas station after K.D. had run away from home. He took her to his house where he was joined by another 15 year old girl (A.L.). Salts gave the girls alcohol, though A.L. drank little. K.D. ended up lying down on a bed upstairs where twice K.D. caught Salts in the process of touching her. After this A.L. called the police. Salts was convicted and sentenced to life imprisonment without the possibility of parole. Salts died soon after his appeal was filed, but in Kansas death will not prevent a timely direct appeal from proceeding since there is a public benefit from the resolution of the case.

Salts objected to the use of the phrase “Another trial would be a burden on both sides.” in the jury instructions which his lawyers encouraged the jury to reach a verdict. They also argued that this instruction conflicted with another instruction which told the jury not to be concerned about what happens after they have delivered their verdict. The State argued that this instruction (which comes from Jury Instruction Pattern PIK 3d 68.12) was there to ensure that jurors spend time diligently and fairly considering all sides in the case, and not simply hang at the earliest impasse. The State noted that the instruction also made it clear that the challenged language did not tell jurors that they had to give in to pressure and come to a decision. The Court for its part agrees with Salts and finds that this part of the instruction is erroneous. The Pattern Instruction Committee is instructed to amend this pattern to correct this problem.

The standard Salts lawyers would have to meet to secure a reversal of conviction would be that the jury instruction was clearly erroneous, which would mean that there was a real possibility that the jury would have reached a different verdict without it. Therefore, although the instruction contained an error the Court held that Salts conviction was safe as there was no reason to believe that he would not have been found guilty without this instruction. His conviction was therefore affirmed.

Decision: State v. Gracey

February 10, 2009

February 6th. The Kansas Supreme Court has issued its opinion in State v. Gracey (No. 99,310) a “Jessica’s Law” sentencing appeal. In a unanimous opinion, written by Justice Rosen, the Court affirmed that Kendrick Gracey could be sentenced under “Jessica’s Law”, but vacated the sentence pronounced and remanded the case for resentencing. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

Kendrick Gracey, 21, fondled a 12-year old girl while she was sleeping on a living room couch. Gracey claimed afterwards that he believed the girl was 16. Sex crimes committed by over 18 year olds against under 14 year olds trigger “Jessica’s Law” which results in a mandatory minimum sentence of life imprisonment without the possibility of parole for 25 years. Gracey pled guilty. Mandatory minimums are not as minimum as people think, however. Even “Jessica’s Law” allows Judges to grant a downward departure in sentencing, and in this case the Judge did that, sentencing Gracey to 55 months. The Judge ruled that he could not grant probation as the law stated that the downward departure sentence must follow the sentencing guidelines which would result in a prison sentence in this case.

Gracey’s appeal initially challenges his sentence being pronounced under “Jessica’s Law”. He notes the importance of the age factor in the law and alleges that his charging instrument did not specify that he was over 18, although he did not object at the time of the trial. Such appeals have a fairly high bar to overcome, since they must show that as a result of any defect in the charge prejudiced the defendants defense. In this case the Court rejects this argument out of hand as the charging instrument included Gracey’s date of birth and stated the age requirement in the law.

Gracey succeeded on his second argument. At sentencing he had sought probation but the Trial Court had ruled that under the sentencing guidelines it had no choice (having found sufficient mitigating circumstances to depart from the mandatory minimum sentence) but to follow the sentencing guidelines which were the alternative approach prescribed in the statute. The Trial Court held that it could issue a downward departure in duration but not in disposition (i.e. Gracey had to go to gaol). Gracey argues that the statute defines a departure as a sentence “inconsistent with the presumptive sentence”, which therefore would include the option of probation. The Kansas Supreme Court agreed with Gracey on this point. It held that once the Judge had found sufficient mitigating circumstances to depart from the “Jessica’s Law” sentence, he could have then found those same circumstances sufficient for a further departure from the sentencing guidelines (as laid out therein) to probation. It did not hold that the 55 month sentence was an illegal sentence. While Gracey’s sentence is vacated and the case remanded for another go, the District Court is only instructed to determine whether probation is appropriate. Should it determine otherwise it could still choose prison.

The Court noted that the law at issue was amended in 2008. Future convictions under this law cannot, even with mitigating circumstances, receive probation. Gracey was convicted before this amendment was made. This fact further supported the Court’s reasoning that prior to the amendment the District Court could have considered probation.

Commentary: Justice Rosen is clearly concerned in this opinion that the State applied “Jessica’s Law” to Gracey, who has an IQ of 50. However, it occurs to us that the reason for the mandatory minimum under that law is that these kind of offenders are especially likely to re-offend. A low IQ does not alter that fact: indeed perhaps someone with such an exceptionally low IQ is even more likely to reoffend, since they may be less likely to appreciate the criminal aspect of what they are doing. Whether civil commitment is a better option in such situations is another matter.

Decision: Central Natural Resources v. Davis Operating Co.

February 9, 2009

February 6th. The Kansas Supreme Court has issued its opinion in Central Natural Resources Inc v. Davis Operating Company (No. 96,463) a property law dispute involving mineral rights to coalbed methane gas (CBM). In a unanimous opinion, written by Justice Johnson, the Court affirmed the District Court’s granting of summary judgement rejecting Central Natural Resources contention that its rights to the coal in certain tracts of land in Labette County also gave it ownership of the methane gas contained there. Note: This was an interlocutory appeal. The remainder of the case involving a variety of disputes continues in the District Court which had ruled that an interlocutory appeal would aid the rest of the case. This was because its outcome profoundly affects the remainder of the case and because this was a question of law over which there was a strong difference of opinion.

Davis Operating Company and its co-defendants obtained leases to extract gas from 16 separate pieces of land. After these had been developed and were producing gas, Central Natural Resources filed a suit claiming that the (unused) leases it held covering the coal rights (granted to prior companies Central was successor) gave it ownership of the gas. It therefore sought damages for trespass and conversion for the drilling and production activities. The leases Central holds date back to the 1920s. The District Court rejected Central’s arguments and held that the gas was a separate mineral to the coal and therefore the coal leases did not encompass the gas. Central’s deeds gave it the rights to extract the coal and made no mention of any other mineral.

This ruling is affirmed by the Kansas Supreme Court. In its opinion the Court considers several arguments made by Central and rejects them all. Firstly, Central had suggested that as a matter of law the CBM gas is part and parcel of the coalbed in which it is to be found if the coal rights are the first mineral rights granted and there is no specific reservation of the rights to the gas. The Court dismissed this argument on the grounds that it did not fit with normal mineral rights and other property law. When an estate is subdivided it becomes multiple distinct estates, the boundaries of which are governed by the title deed. The Court refused to create a rule here that held that anything contained in the coalbed was conveyed by a deed to ‘the coal’.

Central also argued that the Court should alter its normal approach to interpreting the meaning of deeds (which involves discerning the intent of the parties entering the deed, in the context of the deed they wrote) to one based on an ‘intelligent person’ standard, where an external analysis of the logical meaning of the deed would be applied. Central’s aim here was to then establish that since CBM is mainly held within the pores of the coal through adsorption to the rock surface, transfer of the coalbed must mean transfer of the CBM. The Court declined to change its approach to deed interpretation, and Central’s argument here therefore failed.

Central next argued that a statute required that the deeds to the coal have transferred all rights to the gas. The Court rejected this argument, too – the statute in question clarifies that in real estate transfers all interest in the land passes to the grantee unless otherwise stated in the deed. Central believed that this meant that absent a reservation the deed to the ‘coal’ axiomatically meant ‘everything within the coalbed’. However, the Court pointed out that the statute did not apply here. In these cases the transfer of the property had been subdivided since the original owners had retained all rights except to the coal.

Having dispensed with Central’s alternative approaches the Court followed its normal approach and examined the intent of those who had made the deeds. In doing so Central’s arguments about the origin and nature of CBM did not help it. At the time the deeds were written, CBM was seen as a hazardous gas responsible for mining accidents and little else. To those writing the deeds it held no economic value, but at the same time was not considered a part of the coal. The deeds gave Central’s predecessors rights to the coal and the coal alone (though all parties understood that if the coal were removed the gas would go too). They did not by extension grant rights to extract the gas while leaving the coal in place, which is what the defendants are doing and obtained separate rights to do.

Central’s case against the defendants for alleged damage to the unworked coalbed by the gas extraction drilling continues.