Kansas Appellate Law Update
Articles,  Blog

Kansas Appellate Law Update


As, uh, Justice Stegall, or as we like to
call him, Caleb, uh, just said, “Sometimes presentations on case law updates can be somewhat
boring.” And so if you do doze off, that’s appropriate,
just don’t snore during this presentation. What we decided to do, because you do, hopefully,
does everybody have the written materials that we had outside? Each of you practice in various areas. Some of you may be in, in governmental, uh,
practice, some may be in civil practice, some may be in criminal, uh, we have, uh, those
who are in, lobbyists, members of the public. Uh, you may be interested in different things. So what we thought we would do, instead of
going through a bunch of cases, we want to highlight a few things, and in particular,
we want to highlight kind of things relating to judicial philosophy. And so the first case we’re going to talk
about, which is on page eight of your uh outline is uh one you probably, uh, have read about,
uh. It’s a pretty big, uh, topic in, uh, the retention
elections, uh, in November, which is the Hodes & Nauser case, uh, which involved the Kansas
and Warren Child Protection from Dismemberment Abortion Act. And if you notice, Justice Stegall has left
the room because this case is currently under review by the Kansas Supreme Court. But I think it’s very important for us to
talk about this case, and it’s one that uh both Tony and I will talk about a little bit,
not for some commentary, because I think this case probably does more than any other case
that I know of in the recent history of Kansas, to show kinda the differences in judicial
philosophy. Uh, not necessarily differences in political
philosophy, ’cause this I’ll point out to at least those who agree with just … Judge
Powell and I, uh … we had uh, Democrats, Republicans and Independents, uh geographical
diversity, the only African American judge, uh, male, female, so, there was diversity
but, but where there is uh, things that in common, involve judicial philosophy and different
approaches that uh, the judges took. Now that may be, Tony, you want to just tell
kind of the history account that came to pass that we had to uh even review this case? Well, it’s funny, when I, I think of my career
in politics and when I was in the house I was a outspoken pro-life advocate, but when
I came to the judiciary, I was determined to put my political views aside and decide
cases as the law and of course in Sedgwick County, we elect our district judges down
there and Kansans for Life and other groups are involved in those races to a certain extent. Uh, I know Kansans for Life endorses uh judicial
candidates, and I also … often thought, you know when I became a district judge and
being a state court judge, I really never thought that I would actually have the opportunity
to actually rule on, on an abortion question. I always thought that’s there was a little
bit more heat than light on that issue, particularly as it related to the state judiciary. Uh, but what’s interesting that in my career
I actually have encountered the question twice. Uh, there was a case in Sedgwick County, I
don’t know if it ever made the papers in northeast, I don’t think it did. Uh, there was a trial of Dr. Tiller. Uh, I don’t know if you recall but he was
charged with some 14 misdemeanor counts, uh, criminal counts, of violating, I think the
disclosure uh laws and uh. uh, abuse of child for not certain reporting those issues. And uh, I was assigned that case by the uh
criminal presiding judge who at the time, was Judge Waller. And of course um that in itself became uh
news. The- the Associated Press report, I was appointed
on a … I think on a Thursday, and we had a brief hearing on Friday, and then on Saturday
there was a big article in the paper and I think it may have been statewide, because
it was done by John Hammond and the Associated Press, talking about comments that I had made
about uh Dr. Tiller when I was a member of the legislature. And I-
They weren’t tests, were they? No. Good. Uh, and what’s funny is that I, I didn’t recall
those comments at all, but I remembered in my ruling recusing myself from the case, which
I ultimately did, uh, saying that I didn’t deny having made them, but I made the point
that regardless of what your views on abortion may be, that isn’t the cause or the reason
you should recuse yourself from a case that might implicate abortion. In my particular instance, I felt that it
created a problem in the minds of a reasonable person. I, of course, felt I could be fair to Dr.
Tiller, but given my comments that I had made and I thought in the minds of a reasonable
person, it would cause someone to question my impartiality, so I recused from … myself
from that case. Ultimately the case was reassigned to a different
judge. I think Dr. Tiller was acquitted uh of those
charges, uh, and that occurred… I want to say that was about 10 years ago
I think that case happened, uh, and then this case. Uh, what’s interesting about how this case
came to our court and in its posture before the Supreme Court currently, it’s just, I
think it’s a motion to dismiss, uh, it’s a… no, excuse me, on a preliminary injunction
stage, which is very… it’s really unusual to see a case go all the way through the appellate
process just … and at such a very preliminary stage, and we were surprised uh to actually
end up having to decide the question because both parties asked the Supreme Court to transfer
the case to itself and decide this issue, ’cause we all recognize what a significant
issue it was and that question that’s before the court is on the strictly narrow grounds
of whether the Kansas Constitution, uh, recognizes a right to abortion. The- the litigants deliberately did not plead
any federal question, uh, in the case, which makes it very unusual. I suspect that there’s, there’s some strategy
behind that but it’s significant for that reason in that all the cases that you see
about abortion, they’re all pleading federal, uh, question-type issues in those cases. This one is unique in that it’s really the
first case to really address the question of abortion. Uh, the other significant thing that I would
[inaudible] maybe warranted a… the guts of the case but uh it was the first time that
our court had sat en banc in I think 20 years or so. Our court is made up, as you know, of 14 judges. We typically sit in panels of three and we
hear cases all over the state. Uh, only very rarely do we sit as a group
of 14. Uh, in fact, the last time the court had done
so like I say, was about 20 years ago. The most… I think the only other published case was
a case back I think in the late 70’s dealing with the Public Employer Relations Act, which
the court and, and sat en banc. So it’s in terms of historical significance
for the Court that it was very historical. It was… it was interesting because with
14 of us, there was only one courtroom that we could use that would have been able to
have to seat all of us, and that was the Supreme Court chambers and so we used the Supreme
Court chambers, basically doubled up. As you know, there’s some seven members of
the Kansas Supreme Court so the 14 of us sitting around the dais and it just fit all 14 of
us. In fact, if we ever get a 15th or 16th judge,
we’re gonna have to find someplace else, cause even that won’t be big enough. And so it was very interesting that… I think from a historical perspective on that
point. The other thing that I think is significant
is it’s the first time that our court has ever been evenly divided, which is also a
rarity, uh, in judicial circles. You don’t see divided, uh, courts very often. Uh, that was also, I think, historically significant,
uh, and as Judge Brunt said, what was also interesting was the makeup. Technically, the majority, which, uh, ruled
that there was a, a Kansas right under the Kansas Constitution to abortion. All those judges were all Johnson County judges. Of all the judges that were outside of Johnson
County, uh, were among the dissenters, which I thought was interesting. I’m not sure why that ended up being that
way but I just thought it was sort of interesting. Um, and so, with that background, uh, just
how to… there… there are a lot of things I’d love to be able to tell you about the
inside machinations which I, I really can’t, but I can say that there were some hard feelings
(inaudible) when the court made the decision to hear this case en banc. That was controversial within our court. I don’t think I’m talking out of school to
say that. That also required a significant debate within
our court and our conference just to make that decision and that ended up, you know…
it was a momentous decision, I think, for our court and there were a few judges who
I still think today probably harbor some animus about that because you know on a, on a controversial
decision like this, you’re gonna always make somebody unhappy or somebody very upset with
such a controversial issue, and I think there was some judges who didn’t wanna have to declare
which side of that fence they were gonna be on. Uh, so I think it’s significant, uh, from
that standpoint, but the good news, also, I think, uh, in this case, is to, to show
how the Court of Appeals… I, I, I guess I’m proud of our court in that
we took such an important issue and such a big case and decided it in a very expeditious
manner. We, uh… when that case was brought to us,
we set it for oral argument in a relatively short period of time… I think only a couple of months. Uh, we heard the case in, uh, December of
’15, I think it was? Right. Um, and we issued an opinion in January of
’16. So, an opinion came out, really, within 60
days of our hearing the case, which I think is pretty significant for such a important
case, uh, and I’m proud of our court for having done that. We didn’t keep… we recognized the importance
of the case to the public. Uh, we recognized the importance of the case
to the litigants, and because of that, I think we took it seriously for that reason, even
though we understand that in … particularly in a question like this where, where a speed
bump, in essence, to the end of justice and ultimately the Kansas Supreme Court will have
the final word, but we did, do take our jobs very seriously and take our oaths seriously
and I, I think it’s a credit to our court that we were able to handle it like we did. Well, and I, I think it is fair to say that
we were disappointed that the Kansas Supreme Court would not take the case when both sides
asked that they take it, and I am also proud of, of everybody on the court, even those
who did, uh, did not side with Judge Powell and I on this issue, with the fact that we
took a stand. We took a stand during an election year, uh,
and, you know, you can run and hide from cases or you could be you … I think the Code of
Judicial Conduct requires you to decide even the difficult cases. It would be nice to pick and choose, but we
don’t get the opportunity to do that. So just so you understand the process, as
Judge Powell said, this was a temporary injunction to stop the act from going into effect on
July 1st of 2015. Passed in the Kansas legislature in 2015. Immediately these physicians filed and got
a temporary injunction from Judge Larry Hendricks here in Shawnee County, District 4, in which
he basically stated from going into effect. Now ultimately, because of the way the Court
of Appeals was divided on this issue, the temporary injunction continues to this day
to stay in effect. But I do, as I said before, believe this is
a good example about different judicial philosophies. This is unique because actually, most judges
on our court sided with us. Six judges, which I’m calling the federal
supremacy group, or the Leben group, uh, six judges, Pierron, McAnany, Buser, Standridge,
and Arnold-Burger, joined in the opinion written by Judge Leben. Judge Atcheson, and then I’m gonna call him
the lone wolf or the living Constitution uh, group, and, uh, kind of like in … What’s
the movie? Hangover or whatever, that, uh, he’s kind
of the lone wolf on his own on this issue, uh, uh, and you’ll see that, that he uses
a, very much a living Constitution philosophy, which of course we know is out there, and
then seven judges, including Judges Green, Hill, Judge Powell, myself, Judge Schroeder
and Judge Gardner and I joined an opinion written by then-Chief Judge Tom Malone. I think we both would have liked to have written
this opinion but he was chief judge and he got to pick who wrote that opinion, but he
did a great job and I would call this more of a textualist or an originalist. It kind was… it was unique because not everybody
necessarily had exactly the same view on it, but we did have the same view in the- the
outcome, so some were basing it maybe more on original intent. Some were basing it maybe more on just the
plain language of the Constitution. And, uh, I just wanted to remind you, if you
don’t have it memorized, this was brought as Judge (Inaudible) said, not under federal
law at all, even though the decision that ended up being prevailing is based on federal
law. They wanted to avoid… I asked the questions, “Why aren’t you in
federal court?” They wanted to … They did not want this
case removed to federal court, so they only brought the case under the Kansas Constitution,
Section I of the Bill of Rights and Section II. Section I, however, is the most important
and I’ll remind you of what it says. These words may sound real familiar. “All men are possessed of equal and inalienable
natural rights, among which are life, liberty and the pursuit of happiness.” Anybody heard language like that someplace
before? That comes, of course, from the Declaration
of Independence. That’s not found in the United States Constitution. Then, as Justice Stegall was talking about
the Wyandotte Constitution here in Kansas, uh, was actually ratified in 1859, and of
course, we became a State in 1861. There was no Fourteenth Amendment ratified
until nine years later, so it’s very difficult to say that the Kansas Bill of Rights is based
on the Fourteenth Amendment when they would have had to have had a time machine in order
to have done that. But here’s the reasoning, I’m just gonna
quote a, a small section. Read the opinion if you’re interested. I do think it’s interesting reading. Judge Leben said this, uh, for the… when
I’m calling the Leben Six, “The Kansas Supreme Court has said for nearly a century that Sections
I and II of the Kansas Constitution Bill of Rights have much the same effect as the due
process and equal protection clauses of the United States Constitution, and a right to
abortion has been recognized under the due process clause of the Fourteenth Amendment
that the United States Constitution for more than 40 years.” Citing Roe. “We, therefore, conclude that Sections I and
II of the Kansas Constitution Bill of Rights provides the same protection for abortion
rights as the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
the district court correctly determined the Kansas Constitution Bill of Rights provides
a right to abortion,” and in keeping with Justice Stegall’s presentation on Justice
Brewer, Just-Judge Leben uses Lochner in a way to show that Lochner provides substantive
due process. Kansas version of Lochner is a case called
Gilbert v. Mathews decided in 1960, which also says there’s just such a thing as substantive
due process. Now there’s debates out there whether there’s
truly substantive due process or not, but regardless of that, Judge Leben relies on
Lochner and Mathews to say, “Hey, we recognize substantive due process. Section I of the Kansas Constitution provides
substantive due process rights.” It’s- so that philosophy’s very much based
on the (inaudible) yield to the interpretation of the federal Constitution and basically
graft that into the Kansas Constitution. Judge Atcheson’s reasoning was a little different. He recognized, “… that the language of Section
I had no direct or even generally analogous counterpart in the United States Constitution. The provision, therefore, affords protections
distinct from any in the United States Constitution and should be construed independently of federal
constitutional law.” To that extent, he agreed with, with the… Judge Malone and Judge Powell. But then, he went on and said, “However, he
equated national rights to the Kansas Constitution with self-determination for the exercise of
free will and based on that he says, “consistent with the drafters’ over-reaching vision through
Section I, women cannot now be permitted only a half measure of self-determination. Accordingly, women have a right, protected
in Section I, to exercise reproduction freedom as an essential component of their self-determination.” The seven that decided that the injunction
should be set aside found, uh, found that the Kansas did not provide specific right
to abortion. Judge (inaudible)’s opinion basically… here’s
a summary of what we concluded. “Simply put, there is nothing within the text
or the history of Section I and II of the Kansas Constitution Bill of Rights to lead
this court to conclude that these provisions were intended to guarantee a right to abortion. Kansas courts are authorized to interpret
our state Constitution in a manner different than the United States Constitution has been
construed and we should do so when appropriate. Our state’s founders held sacred to basic
concepts of life, liberty and the pursuit of happiness and they expressed those sentiments
in the… in that order in Section I of the Bill of Rights. Even if Kansas courts were to find substantive
due process rights under Section I as opposed to a mere expression of traditional beliefs,
we would not find a substantive due process to abortion.” So hopefully we’ll find out what the Kansas
Supreme Court- this has been argued now, and hopefully, we’ll soon learn what the Kansas
Supreme Court will say about this issue, but, uh, we’ll remind you that, uh, I wish Justice
Stegall was here for this. Just because it’s Supreme Court… Here’s a case… doesn’t mean they’re always
right but they are usually last. Judge Powell, you wanna maybe, uh, talk about
a couple of criminal cases. Before, uh, we decided how we were gonna make
our presentation, uh, I got the short end of the stick and agreed to do the, uh, criminal…
to talk about two of the criminal law updates. Hopefully, they’ll have some practical use
for you. Uh, I think there are… somewhat more interesting
cases with the civil cases, particularly the abortion case that we just talked about. But I wanted to pick out a few cases that
I think are significant. Uh, the one case I want to talk about first
is State v. Hardy, and that’s on page 45 of your criminal materials. I think they’re all stapled together, so go
to the criminal section and then it’s number- page 45 on your criminal self-defense. I think this case is significant because it
deals in a significant way with the legislature’s, uh, self-defense immunity statute. Uh, in recent years, uh, I think the issue
of self-defense and the right to self-defense, particularly as it pertains to the right to
keep and bear arms, I think, is gaining and growing support among the republic, particularly
when you see the terrorist attacks that have occurred around the world and even here in
the United States, and the fact that law enforcement, you know, they can’t there instantly. They can’t be everywhere, and we learned that
just this past week, uh, with the shooting of a congressman that if … that Congressman
Scalise, who is a member of the House leadership, did not have his security detail there, we
could have had a massacre. Um, an-and so, I think there are views in
many legislatures, particularly in our legislature, that the right to self-defense is a very important
right and I think the legislature has expressed itself significantly by elevating that right
really beyond what is traditionally known, uh, as an affirmative defense to a criminal
charge… that the right of self-defense in the past has always really been treated as
an affirmative defense. They’ve raised it now really to a level of
immunity, and how our courts have dealt with that. I think we’ve, we’ve struggled and, and this
case I think the Supreme Court, uh, in an opinion offered by Justice Stegall, I think
does a good job in really setting forth the clear rules as to how we should look at it. Um, the statutes under KSA 21-5231, and it
provides immunity for persons who act in lawful self-defense. It says basically that a person who uses force
which is justified is immune from criminal prosecution and a civil action for the use
of such force unless the person against whom the force is used was law enforcement. So by shorthand, you have immunity from prosecution
if you use lawful self-defense unless you use that force against law enforcement and
then the traditional of an affirmative, uh, offense will apply. As you’re all probably aware, typically, before
a defendant can be put on trial for a felony, there must be a preliminary hearing in which
the state must put on sufficient evidence to establish that there is probable cause
that the defendant committed the charged crime. The district court is to make this determination
typically, or she could always use a grand jury to do that. Typically in our state, the more common practice
is the use of a preliminary hearing with a judge. After reviewing the facts presented by the
State in the light most favorable to the state, without doing any real weighing,
makes the decision whether probable cause to exist that that defendant committed the
charged crime. It’s all done in the backdrop of the fact
that the defendant is ultimately entitled to have a jury decide his guilt or innocence. Based upon the requirement, the state then
has to prove that guilt in each element of the offense, beyond a reasonable doubt. In this particular case, uh, Hardy was riding
as a- at a- in a- as a passenger in a car driven by Jaylyn Bradley and they were driving
to some gathering, uh, uh, to a house on Fairview Street in Wichita. Javier Flores was a party-goer at the house
which, uh, the defendant, Hardy, and I presume it was his girlfriend, uh, Jaylyn Bradley,
drove to, uh, was apparently severely intoxicated and when Hardy and Bradley attempted to leave
with a minor whose initials are Y.M., some dispute arose and Flores and several others
attempted to block the car from leaving the house. In fact, they surrounded the car. Uh, Flores then shelled… yelled racial slurs
to both Hardy and Bradley and in fact, several bystanders tried to hold Flores back because
he had become so agitated. Uh, the facts don’t dispute that Flores was
the real instigator of the violence. Flores approached the passenger side of the
car and he reached in and struck Hardy two or three times in the face. This prompted Hardyman then to pick Bradley’s
gun. No, I don’t know why Bradley had a gun with
her, but she did, and, uh, he takes it out of the car’s console and, uh, he shoots Flores. Then Bradley picks up the gun and she shoots
Flores as well. Now amazingly, Flores wasn’t killed, but he
was hit in his extremities and the state charged Hardy with aggravated battery. Judge Kaufman, who is an excellent district
judge in Sedgwick County, heard this case and he first heard the evidence at the preliminary
hearing and he decided the matter strictly as a traditional preliminary hearing. You would. He made the- the- that determination as to
whether the state presented sufficient evidence, uh, uh, in the light most favorable to the
state, whether there was probable cause that Hardy committed the crime of aggravated battery. He bound over the defendant on that basis. Subsequent to the preliminary hearing, Hardy
then files a motion for immunity claiming that his use of force was justified and that
he was entitled to immunity, and he was really arguing, “Judge, I should be immune from this. I should be subject to a trial.” Uh, Judge Kaufman… there was also a dispute,
well, was he entitled to a separate additional evidentiary hearing on this point? What… how was the court to view this evidence? Do they view the evidence in the light most
favorable to the state, or do they just do a normal weighing of the evidence, and we
really had no precedent, uh, for how to deal with that particular question. Judge Kaufman, relying in part on a Kentucky
Supreme Court decision which has a very similar statute, ruled that the court wasn’t required
to take additional evidence, but could take the record as it was, meaning the preliminary
hearing record, plus any affidavits… probable cause affidavits, to decide this question,
but Judge Kaufman ruled that he would not look at the evidence in the light most favorable
to the state, but would simply do a normal waiting, and after having done so, Judge Kaufman
said Hardy was entitled to immunity and basically declared that basically dismissed the charge. The court then … the case. Of course, the state appealed to our court,
and Judge Atcheson in the case reversed the district court and I think really looked at
this case in terms of, “How do apply the preliminary hearing framework?” I think, uh, the, the panel that heard this
case really looked at it in terms of that, that, uh, we should deal with this as part
of a preliminary hearing, that the evidence should be viewed in the light most favorable
to the state, that the finding of theirs should be a finding of probable cause, but that the
finding also should be a negative finding that, that the state has to show probable
cause that the defendant’s use of force was not justified, and it should all, in essence,
be at the- done at the same time. And so that the court reversed and said that
the hearing should be conducted, that, at the same time as the preliminary hearing. Uh, ultimately, the case came to the Supreme
Court and what I think is significant is that the court talks about, as it does often, about
the plain language of the statute. They drew a clear distinction that the legislature
was drawing a clear distinction between simply using it as an affirmative defense, which
self-defense had always traditionally been viewed at, with the words of the statute,
which talks about immunity, that, it, the legislature meant something more than with
immunity, their card talked about, this really entitles a person to not be subject to a trial. Uh, and so that… if that would be more than
just in essence a negative finding. Uh, referring, uh, to the definition of immunity,
the court refu- uh, refers to Black’s Law Dictionary, which defines immunity as, “any
exemption from a duty, liability or service of process.” It concluded that the whole purpose of the
immunity statute was designed to avoid a trial and it reasoned that, while courts, uh, the
lower courts that had considered this case were typically reluctant, which is understandable. When you’re used to looking at issues in a
certain way, usually when we look at these cases, we think of it in terms of the defendants’
rights and the state’s right to have a jury determine the guilt or innocence of a defendant,
and there’s a reluctance to sort of take that away, and that’s how it’s traditionally looked
at but I think the court then, uh, said, “No, we have to look at this particular question
and differ.” The- the court drew an analogy when the court,
uh, a neutral and detached magistrate determines whether there’s probable cause to support
a search warrant, and then when a court does that, it typically does with weighing of the
evidence. It doesn’t look at those facts necessarily
in the light most favorable to the state but looks at those facts as they come to the court
to make a decision whether there is, in fact, probable cause to conduct that search. So ultimately the court concluded that in
considering cases under immunity, the court directed that district courts when reviewing
this issue, they are to look at the evidence by weighing that evidence, not viewing the
evidence in the light most favorable to the state, and they’re to conduct an evidentiary
hearing, but the court gave discretion to the district courts as to what, when t hearing
should be conducted. It doesn’t have to be conducted in conjunction
with the preliminary hearing, though that might be a time saver, but the court didn’t
mandate that. It’s really left to the discretion of the
district court, but said the district court may weigh that evidence and if the court finds
that the defendant’s use of force is justified, they’re entitled to immunity and there is
no trial. Josh, (inaudible) Josh, I don’t recall what
time we, we ended we ended up starting with … When do you want us to end by? We want to make sure we end up (crosstalk)
About 10, 10-15 more minutes, all right? Okay. Well, I think in the interest of time, what
we’ll do is, uh, we’ll just point out (crosstalk) a few cases and not get into detail and then
we wanted to at least leave it open for a couple of questions at the end. Uh, so on page 16 of your civil outline, there
is a case called Smart v. Burlington Northern Santa Fe Railway Company. Now a lot of you probably do not do Federal
Employer, Employer’s Liability Act, FELA cases. However, this opinion, I think, is one that
you, uh, if you practice in state courts and have not practice much lately in federal courts,
this is a case that you’ll wanna review. It was an opinion written by a Judge Gardner,
who, of course was for many years a research attorney for, uh, Judge Sam Prell in federal
court, and she writes about the application of doubt and I think that’s very important
because uh, some of you, uh, I went on (inaudible) bench in 1999 and uh, all we knew was (inaudible),
of course. So, I’m not going to read that pitch to you
or point out anything other than, if you want a good case on the application of (inaudible)
and the district court’s role as the gatekeeper on an expert witness, Judge Gardner’s opinion,
I think, is excellent and a mandate was issued on April 20, 2016, so certainly you can cite
that case. Another one on page 16 of the outline that
I’m gonna point out. It’s a Kansas Supreme Court opinion in the
case of Apodaca v. Willmore, and, uh, that case is, uh, somewhat, uh… well, it’s interesting
for a lot of reasons that I can’t… I probably won’t get into, but one thing is,
it’s a 4-3 opinion from the Supreme Court. I actually had the case from the court of
appeals. The issue which came out of Shawnee County
(inaudible) again, uh, and I, I know I irritate some of my, uh, fellow judges in the court
of appeals, but Shawnee County’s kind of the DC circuit in Kansas. A lot of these state-type cases come through
Shawnee County. That’s why you’ll see, uh, people asking,
“Why do you see Judge (inaudible) name on all these cases, or Judge (inaudible), or
whoever?” It’s because so many cases from the AG or
whoever come through Shawnee County but this one also came… This had to do with a, uh, whether or not
the firefighter’s rule should be extended to law enforcement officers. Now, firefighter’s rule you may or may not
be familiar with, but it’s a rule that basically says that if a firefighter is responding to
fire or an accident or something, they cannot sue the person who basically caused whatever
it was that they’re responding to. And, uh, Judge Hendricks… a lot of courts
were (inaudible) and the panel I was on, we all said, “Yes, it should be expanded to law
enforcement because it really wouldn’t be, uh, fair of us to, you know what to, uh, to
say that a firefighter and a police officer responding to the same accident, one, could
sue that person, the other couldn’t”, and so we said, “Yes, it should be extended to
law enforcement officers.” Uh, four of the, uh, justices is, agreed with
that, but the other thing I find interesting is politics makes strange bedfellows but so
does, uh, the law because, uh, the dissenters in that case were Justice Lee Johnson, who
was joined by Justice Dan Biles and then a separate dissenting opinion was written by
our friend and colleague in the back of the room, Justice Caleb Stegall. Now I would say that, uh, this was an issue
not presented to the court of appeals but I think Justice Johnson and Justice Stegall
both agree on a good point and that is, should the firefighters’ rule have ever been adopted
in the first place? Is this common law or is this public policy? And if it’s public policy, shouldn’t this
be left in the legislature? So I would offer, and that’s very simplistic,
I would offer that for your consideration. Uh, do any of you do work comp? Nobody does, okay. We won’t talk about that case. Two cases that came out since the, uh, outline
that I do want to point out to you is, first of all, the case of Lozano v. Alvarez, which
is 394 P.3d 862, decided on May 26th. Uh, it’s a civil procedure case, for those
of you who do civil litigation. It involves the interpretation of the saving
statute and it makes it very clear that you can get additional time if your original action
was commenced during the statute of limitation and it was dismissed for a reason other than
the merits. It also makes it very clear, the age-old question,
uh, the district court judges at least wanted to know what the answer was, that basically,
you cannot get more than one bite at the apple. It’s… again, that’s a simplistic explanation
but if you do civil litigation, that’s a case you’ll want to look at. Another reason why I wanted to point that
out is it’s one of the, uh, few opinions sometimes that I agree with Justice Johnson on, so I
want to point out that I agree with him on that particular one. And then the other one that came out after
that outline that, uh… Anybody do product liability? Well, you probably don’t care much about this,
then, but if you ever had the economic loss doctrine, you might want to look at the Corvias
Military v. Ventamatic, involving bathroom fans and the economic loss doctrine and integrated
parts and how far the economic loss doctrine should be extended, and that case is, uh,
I don’t have my piece (inaudible). It’s 2017 West Law 2403041. Since we’re running short of time, let me
just talk about two more criminal cases from the Supreme Court that I think, uh, are of
significance over the past year or so. Uh, but first it is State v. Sherman. That’s on page 38 under prosecutorial misconduct. This case, I think, is significant because
I think it finally wipes the law with regard to this terminology, the use of what used
to be called prosecutorial misconduct. Now as the name suggests, we sort of think
it’s of nefarious or ill-will, improper conduct on the part of the prosecutor when in the
vast majority of these cases, what we’re really dealing with is what would be called prosecutorial
error. So misstatements or, uh, incorrect statements
made by prosecutors during the course of a trial, typically in closing argument, uh,
that may have some impact on the trial but the Supreme Court in the decisions where it
talks about the history and how it developed, and it really stems from the importance of
the right to have a fair trial. You have the due process right to a fair trial
and the prosecutor as an agent of the state, but also as an officer of the court, of course
has that duty to aggressively prosecute the case but not to cross the line into an essence
of error or endanger the defendant’s right to a fair trial, talking about how certain
prosecutorial tactics or statements, uh, can have the effect of doing that and discusses
sort of how the history of law in this area came about. The previous test was, uh, really created
in the sense of prosecutors are given wide latitude, like to present their case but in
those instances where they stray beyond that wide latitude, then the court has to look
at, well, was … in that particular instance, whether it is a comment or some other act
of the prosecutor that was outside their wide latitude, did it have an impact on the, the
trial? Did it prejudice the defendant? And the state has a burden to show, beyond
a reasonable doubt, that the comment didn’t, uh, undermine the verdict. And then there’s a sort of an additional task
that sort of involves the misconduct part of that equation. I think the problem that we were running into
as I mentioned, that in most of these cases, we’re not dealing with misconduct and the
problem that the Supreme Court talks about in this case and they get into another opinion
written by Justice Stegall is that works an unfairness in two different ways. One, it, in many instances, can mischaracterize
the prosecutor’s action, that it was really simply error. It wasn’t ill will or any improper motive
behind the comment and so we’re branding the prosecutor’s actions as misconduct when in
fact, it’s not really misconduct. It’s really just simple error
And then, the converse as well, in cases where there might be, uh, actual misconduct on the
part of a prosecutor, but if that misconduct ultimately didn’t affect the verdict, then
a prosecutor’s misconduct, in essence, can go unpunished. And so that is also a problem when we’re sort
of trying to have one test as the Supreme Court described, so what the Supreme Court
did, I think correctly, is to say, “You know what? We’re gonna split this out, and we’re gonna
say, okay, in general, what we have is prosecutorial error,” and you’re gonna basically use the
same test that we’ve talked about in the past. One, you analyze the comments as to whether,
uh, are they beyond the wide latitude that are afforded prosecutors in making, uh, their
case and then the statements they make, uh, to the jury? And if so, did that error lead to a wrong
act or wrong statements affect the outcome and deny the defendant a fair trial? Uh, so that’s normal prosecutorial error and
that’s we’re how in the bulk of these cases now to look at those cases, and I think those
of us certainly who review these cases frequently I think are relieved to have to… to be able
to say we don’t have to use that order of misconduct in every case. A number of us on the court of appeals didn’t
like using that terms because it was sort of jarring thoughts that come along with that. But what’s interesting is that the court took
the next step and said… just got a couple of minute left … with regard to the misconduct,
we’re not gonna let the prosecutor off the hook so easily. We need not… uh, the court said we’re not
gonna use our supervisory role of… over criminal prosecutions necessarily to, uh,
absolve the defendant of guilt, but we will punish that prosecutor and that prosecutor
can still be punished, either through a disciplinary proceeding or the court using its contempt
powers to punish a, a, a wayward prosecutor in particular instances and so I think this
clarification of law is a useful one and, uh, that’s a significant case. The last case I want to talk about is State
v. Petersen Beard. This is also interesting because I, I’m not
sure it’s ever happened before but it’s where the Supreme Court dealt with the issue of
whether post-release, not, not, but offender registration is punishment. It involved lifetime registration. Uh, the Supreme Court heard three cases in
September of ’14 before Justice Stegall joined the court and then heard Petersen Beard a
year later, in September of ’15, and what’s interesting is that the court came down 4-3,
ruling that post-release… uh, I keep wanting to say post-release… but offender registration
was in fact punishment, and then when Justice Stegall joined the court, they went four three
the other way and said no, offender registration is not punishment. And so the court in Petersen Beard which,
uh, Justice Stegall authored, they issued all four opinions on the same day that Petersen
Beard overruled three other Supreme Court, the three other cases decided on the same
day. Uh, I’m not sure that’s ever happened before. I think it got some national attention because
of it, but the Supreme Court, I think, what… affirmed what has been the traditional view
of offender registration that it’s not punishment and so challenges such as ex post facto challenges
or cruel and unusual punishment challenges and more recently the Supreme Court dealt
with the issue of in the case of an Apprendi analysis, and for those of you who aren’t
familiar with Apprendi, Apprendi is a rule that any fact which is used to extend your
sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt
and in a very recent case… I think it just came out last week, the Supreme
Court said it doesn’t matter whether the court makes a factual finding in order to subject
you to lifetime, post-release supervision because post-relief, not post… see, I keep
saying it again… offender registration is not punishment so there’s no constitutional
issue there. I commend those cases to you. I’m not sure if we’ve got any time left, but
we’d be happy to (crosstalk). Yeah, can we do questions informally during
the break? Yeah, if anybody… I would remind you, if you didn’t know, that
this is the 40th anniversary of the Kansas Court of Appeals, uh, the new Kansas Court
of Appeals. We had one back in the 1800’s and then this
one started again in 1977. Uh, so if you have any questions… I can’t get anything that’s pending before
the court, as you know. Questions about procedure, cases, anything
like that, we’d be happy to answer them. Thank you. Thank you. (Applause)

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