Posts Tagged ‘Biles opinion’

Decision: State v. Morningstar

August 16, 2009

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.

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Decision: McAlister v. Fairway

August 11, 2009

July 24th. The Kansas Supreme Court has issued its decision in the case of McAlister v. City of Fairway (No.s 99,808 and 99,809 consolidated). In a unanimous opinion, written by Justice Dan Biles, the Court squashed an attempt to hold a vote on a citizen’s initiative restricting some of that City’s eminent domain powers. The Court also clarified its jurisprudence on what was permitted in an initiative.

The City of Fairway considered moving its City Hall to a location which contained some historic sites as well as adjoining residential property. This move was unpopular and a petition drive was held leading to two questions being submitted for the ballot. These question would have put to a vote rules forbidding:

1. The move of the City Hall to a number of stated locations, or residentially zoned properties as of January 2005.

2. The rezoning of specific sites and residentially zoned properties as of January 2005, into commercial zoning.

The City Clerk decided that the proposed petitions were invalid as they intruded into the City’s executive functions and did not put them up for a vote. The petitioners filed a lawsuit and the district court ruled summarily for the City. This appeal was then filed.

In making its ruling the Court reformulated its past rulings on how to determine whether a proposed petition impacting on a city was legislative (allowed) or executive (not allowed) in function. Previous cases did not quite synch up on this question and the court drew them together to create a new test. The new test may plainly be stated as asking a series of questions:

1. Whether the petition would create a new law or policy
2. Whether the petition declares and acts towards a public purpose
3. Whether the petition intrudes into areas of government requiring specialized training and expertise
4. Whether the petition addresses issues of statewide concern which the State has delegated to the City

In addition, the results of these four questions are to be viewed in the context of the petition subject matter and in the context of Kansas’ established policy on referenda that they only be permitted where they are legislative and not administrative or executive. On this latter point the Court observed that this is a long-standing tradition in Kansas law, on which other states differ and allow more latitude in petitions. The Court also stated that no rigid weighting of the four questions in the test will be used, rather they will be looked at in the context of the individual case.

The Court then examined the two petitions. It found that the first petition was legislative in character in all but one of the questions. It found it executive/administrative in that in itemizing specific sites as off-limits for the siting of City Hall it intruded into areas of government requiring specialized training. As a result of this it ruled that the petition was invalid. In making that decision the fact that the elimination of the use of eminent domain on Residential Properties would rule 80% of Fairway off-limits was a factor. Thus a similarly worded petition in a more diversely zoned city might pass muster.

The second petition was ruled administrative/executive in all its parts, save that its public purpose test was  a mixture and did not lean either way. As such it was ruled invalid.

The Court therefore upheld the summary judgement that the petitions did not need to be presented to the voters. This is an important ruling since it recrafts the landscape for lower courts dealing with petition drives in the context of city politics. On the plus side, it plainly states the test to be employed. On the negative side, critics will note that the test provides the opportunity for opponents of given petitions to use the broad exclusion of matters requiring ‘specialized training’ to get those petitions blocked.

Decision: Carrothers Construction Company v. City of South Hutchinson

May 26, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in the case of Carrothers Construction Company v. City of South Hutchinson (No. 98,023), a contract dispute concerning liquidated damages. In a unanimous opinion, written by Justice Daniel Biles, the Court held that the construction company was required to lose $140,000 of its fees for delays in the completion of a new sewage plant. In doing so, the Court settled a previously undecided question of Kansas law, ruling that liquidated damages should be reviewed based upon the circumstances at the time of the contract and not taking into account a retrospective assessment of the actual damages incurred to a party.

The background to the case was that the City of South Hutchinson hired Carrothers Construction Company to build a new sewage treatment plant, which incorporated a computer control system. MKEC Engineering Consultants were appointed as Project Engineer and one of their responsibilities was to certify stages of completion, which in turn would trigger liquidated damages at $850 per day of delay if those stages were not met. Both the city and the construction company agreed to the terms of the contract. The treatment plant should have been completed in July of 2003. It wasn’t. In November of that year the City was able to start operating it manually (without the computer system). The project was finally completed in January 2004. Based on this, MKEC advised the City to withhold $140,000, per the contract. Carrothers then sued the City for breach of contract. Carrothers lost in the District Court and the Court of Appeals, which brought the case to the Kansas Supreme Court.

The terms of the contract defined two stages of completion – substantial (when the plant would be operational) and final (when there was nothing left to do). As certified by MKEC, these two stages were met one day apart, the former when the computer control system was finally operational and the second when the manuals to the same were delivered. Carrothers argued that the former was actually met when the City began operating the plant in November 2003. The Court rejected this argument, noting that the contract explicitly included the control system as part of the work and that the Carrothers had agreed to delegate decisions as to completeness to the project engineer.

Carrothers also argued that the liquidated damages should be reviewed for reasonableness in court both prospectively (from the viewpoint of the parties at the time the contract was signed) and retrospectively (after the fact, based on whether the dollar amounts approximated to the actual damages incurred). Carrothers argued that the 10th Circuit Court of Appeals had construed Kansas Law this way in another case, but the Court rejected this and held that the 10th Circuit had in fact found that the issue was not decided. This question was therefore an open question of law and so the Kansas Supreme Court held that in Kansas the analysis in Court of liquidated damages is only based on a prospective assessment. Doing so, the Court stated, was beneficial since it encouraged the use of liquidated damages (instead of tort litigation) and left parties free to agree contracts with one another to handle these issues.

The Court also rejected two arguments from Carrothers, that the $850 per diem damage amount was unreasonably high and that the City waived its right to the liquidated damages by occupying the facility; again holding that it was not the Court’s function to rewrite the contract after the fact.

Decision: State v. Spotts

May 1, 2009

May 1st. The Kansas Supreme Court has issued its opinion in State v. Spotts (No. 100,084), an appeal against a sentence for child rape. In a unanimous opinion, written by Justice Dan Biles, the Court rejected Walter Spotts attempt to have his consecutive life sentences ruled “cruel and unusual punishments” under Article 9 of the Kansas Bill of Rights. Note: This opinion is Justice Biles’ first, since being appointed to the Court earlier this year by now former Governor Kathleen Sebelius (D).

Convicted felon Walter Spotts had sex with a 12 year old on more than one occasion. When charged he pled no contest to two counts of rape and one of sexual intercourse with a child under the age of 14. At sentencing, he presented some evidence in mitigation and argued for a downward departure from his “minimum” sentence. The State argued against this, citing aggravating factors. Ultimately the Judge declined to grant a downward departure and sentenced Spotts to two consecutive life sentences, the first without the possibility of parole for 51 years, the second without the possibility of parole for 25 years.

On appeal, Spotts made two arguments. The first was that the sentences were a Cruel and Unusual Punishment under the Kansas Bill of Rights. The second was that the District Court should have granted a downward departure based on Spotts’ mitigating evidence. The Kansas Supreme Court rejected both arguments.

The Cruel and Unusual Punishment argument was rejected on the grounds that it was not raised before the District Court. As a general rule, new arguments cannot be added to a case in the appellate stage and therefore this claim was foreclosed.

The second argument was rejected on the grounds that the District Court acted within its discretion in sentencing. The statute governing these crimes required a life sentence without the possibility of parole for at least 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure”. The Kansas Supreme Court has held that the standard by which the decision of the District Court is to be reviewed in these circumstances is one where the court is presumed to not to have abused its discretion if a reasonable person could agree with the Court’s pronounced sentence. Since reasonable people could agree, the sentence was affirmed.