Archive for the ‘Civil Rights’ Category

Decision: State v. Casady

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Casady (No. 99,023) an appeal against the imposition of a Bureau of Indigent Services (BIDS) application fee. In a unanimous opinion, written by Justice Eric Rosen, the Court held that the $100 BIDS Application Fee is constitutional both on its face and as applied to this case.

Cynthia Casady was prosecuted for posession of marijuana, drug paraphenalia and prescription drugs without a prescription. She was found to be indigent and counsel was appointed. As part of this process Kansas Law required that she pay a $100 BIDS Application Fee. Casady pled guilty to the prescription drugs charge and the other two were dismissed.

On appeal, Casady argued that the BIDS fee interfered with her Sixth Amendment right to counsel. The Kansas Supreme Court disagreed, finding that the statutary fee does not interfere with the right to counsel since there are safeguards which ensure that collection of the fee need not take place before the trial is over and in cases of manifest hardship the fee can be waived by the court. As a result, the right to counsel remains unaffected by the fee.

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Decision: State v. Henning

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Henning (No. 98,118) a Fourth Amendment unreasonable search case. In a unanimous opinion, written by Justice Carol Beier, the Court held that the Kansas Law which allowed police to search vehicles of arrestees for evidence related to ‘a’ crime is unconstitutional. In doing so it applied the recent United States Supreme Court decision of Arizona v. Gant.

Randy Henning had a warrant out for his arrest. Lyon County Deputy Sheriff Patrick Stevenson noticed him and arrested him when he went to his car. After the arrest, Stevenson searched the car and found drug paraphernalia. Henning and Kelly Zabriskie (who had been in the driving seat of the car) were arrested for possession. Defence Counsel moved to suppress the drug evidence, but its presence was upheld.

Kansas Law had previously stated that in a search incident to arrest one of the reasons for searching the area immediately surrounding the arrestee would be ‘Discovering the fruits, instrumentalities, or evidence of the crime’. In a 1996 decision, the Kansas Supreme Court had held in State v. Anderson, that the word ‘the’ in that sentence meant that the State could not introduce evidence that was found that was unrelated to the crime that was the reason for the search. In 2006 the Legislature reworded the law to use the word ‘a’ instead of ‘the’.

The Kansas Supreme Court held that this change had the effect of altering the Statute so that the police would be authorized to search for evidence of any crime. This law had taken effect five days before Stevenson searched the car.

The Court then analyzed the law under the 2009 U.S. Supreme Court decision Arizona v. Gant. In that case that Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Applying Gant to this case, meant that the Court concluded that the statute was unconstitutional since it authorized searches outside of those narrow limits.

Opinion: While we believe the decision in this case was correct, in ruling this way the Court delved into legislative history to prove what the Legislature intended to do when it replaced ‘the’ with ‘a’. This strikes us as unnecessary as contrary to the Court’s opinion, the Legislature’s intent was apparent from the plain words of the change. We will therefore watch for the circumstances in which this case is cited supporting the use of legislative history.

Decision: Kingsley v. Kansas Dept. of Revenue

April 1, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Kingsley v. Kansas Department of Revenue (No. 98,301) a judicial review of a driving license suspension for DUI. In a unanimous decision, written by Justice Davis, the court held that both the District Court and the Court of Appeals had wrongly concluded that Joshua Kingsley had not properly filed his petition for judicial review. Kingsley’s case was therefore reinstated and remanded to the District Court for rulings on its merits (which were unaddressed). Note: Robert E. Davis is now the Chief Justice of the Kansas Supreme Court. At the time this case was argued, Kay McFarland was still the Chief Justice.

Joshua Kingsley was pulled over by police in Hays in 2005, driving erratically. He appeared to be drunk, and indeed admitted that he had been drinking, or taking drugs. A breath test revealed that he was above the allowable blood alcohol level. As a result, his driving license was suspended. Subsequently, Kingsley appealed against the suspension, arguing that the preliminary breath test and search of his vehicle had been illegal, depriving him of his due process rights. The Kansas Department of Revenue board which heard his appeal, ruled against him and affirmed the suspension of his driving license. He then filed a petition for judicial review of this decision in District Court. The District Court and the Court of Appeals both ruled that the petition failed to comply with the requirements of the statute which lays down this procedure, because it did not provide sufficient information about the appeal. These decisions were based on a previous Kansas Supreme Court decision which had held that jurisdiction was only granted to the courts for the judicial review process for appealing agency administrative decisions by correctly and carefully complying with the requirements set out in the statute. That case was Bruch v. Kansas Dept. of Revenue (2006).

In this case the Kansas Supreme Court reversed the Court of Appeals and District Court, clarifying its Bruch decision to make it clear that while the jurisdictional rules still apply, the lower courts in this case had been too swift to rule that Kingsley’s brief petition for judicial review had not met the requirements of the statute. The opinion demonstrates that Kingsley met the twin burdens under Bruch of showing that he was able to seek a judicial review of an agency decision and of stating the facts he sought to have reviewed. He met the former by being subject to the decision and having exhausted the administrative appeals process. He met the latter with his brief assertion that the DUI stop had been in breach of the fourth amendment. The Court carefully noted that the statute merely requires a statement of facts supporting the petition for review, not a legal argument as had been implied by the lower court decisions.

Kingsley’s case was therefore sent back to the District Court for further action. He is unlikely to be successful however, since while this case has been through the court system testing procedural issues the Kansas Supreme Court ruled in Martin v. Kansas Department of Revenue (2008) that held that the exclusionary rule does not apply to appeals of driving license suspensions.

Constitutional Amendment would overrule Court decision

March 25, 2009

March 25th. By a huge margin both houses of the State Legislature have passed a proposed constitutional amendment, that will appear on the next General Election or Special Election ballot for ratification. The amendment would alter the State Constitution to overturn the 104 year-old decision in City of Salina v. Blaksley, which held that the right to bear arms was collective in nature. The proposed new wording would alter section 4 of the Kansas Bill of Rights to state:

A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose

in place of the existing

The people have the right to bear arms for their defense and security

The remaining wording about standing armies would remain untouched. The proposed amendment passed the State Senate by a margin of 39-1 and the House by 116-9, far exceeding the necessary 2/3rds requirement.

The Kansas Supreme Court’s decision in City of Salina v. Blaksley is notable mainly for being the first court decision which invoked the now debunked “collective rights” interpretation of the right to bear arms. The decision was issued by a unanimous court in November 1905. At present this case and its progeny remain valid law in the State of Kansas (although the U.S. Supreme Court’s decision last year in District of Columbia v. Heller contains it to the state constitution). However, in the 1970s the court backtracked somewhat from the pure collective rights position when it found that a municipal ordinance banning the transportation of a firearm in all circumstances to be over broad.