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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of murder in the first degree and appeals.
The tragedy was the result of a controversy over the grading of a road. The facts were, substantially, as follows: The defendant was the owner of a large farm in Osage county lying on either side of a county highway known as the Overbrook-Richland road. His home was located on the west side of the highway and a tenant house on the east side. He had constructed several driveways from this county highway into his premises — one from the highway just south of his home around its rear and back into the highway just north, another from the highway to the bam, which was a short distance north of his house, and two others to-the land on the east side of the road. North of the bam was a stone fence which ran east to a hedge fence along the west side of the highway. There was a gap in this hedge fence about 200 feet north of the bam, which was used as an entrance to a field from the highway. At the driveway south of defendant’s house there was a wooden culvert across the ditch on the west side of the road. At all pf the other entrances defendant had filled the ditches with rocks to enable him to pass in and out. On June 9 and 10, 1924, a county road-grading crew, in charge of Dell Herían, as foreman, and including in its number the deceased, Henry (Dude) Hupp, was grading this county highway. The machinery in use consisted of a large tractor driven by Frank Tucker, pulling a large grader which was operated by the deceased. Hitched to the rear of the large grader was a small grader which was operated by Fred Montgomery. The tractor traveled just to the right of the center of the road and the two graders worked partly in the ditch at the side of the road. Other members of the crew followed behind the machinery clearing out the rubbish and brush.
On the afternoon of June 9 the grading crew, working north on the east side of the road, graded out the rock fills at the entrances near defendant’s tenant house. Defendant was away from home at, the time, but returned soon afterwards. He followed the crew about, half a mile north, where he protested against the removal of these rock fills. A controversy occurred between the defendant and Herían, the foreman, which ended in a fight. Herían informed defendant that he expected to take out the-other fills, and defendant replied that they should not take out any more rock, and that he would be there the next day. Later in the afternoon the defendant endeavored to procure the advice of his attorney, also the county attorney, and subsequently, at the suggestion of a friend, went to a justice of the peace in Overbrook and secured a so-called “injunction,” which was served on Herían that evening. The difficulty was discussed at defendant’s supper table that evening. Defendant stated that they would not take out any more rock; that he would be there and see that they did not go through. His wife and hired man, Frazier Owen, advised him not to have any trouble over the matter. There was similar talk by the same parties at the breakfast table on the morning of June 10. After breakfast, and before the grading crew had returned to work, the defendant went north on the road to where the'machinery had been left the night before. About seven o’clock he and Owen went to work some distance from the house. Before leaving, the defendant told his wife that he would be at the road when they (the graders) came back. About an hour and a half before the tragedy, defendant instructed Owen to tie his horses in the field and return to the house with him “to hear what was said.” On their return, Owen busied himself with chores while the defendant busied himself about the barn, where his shotgun was kept, watching for the graders.
About 10:30 a. m. the graders were heard approaching from the north, grading the west side of the road. The defendant climbed over the stone wall north of the barn with his gun in his hand, and proceeded north to the gap in the hedge fence. The gun was loaded. On his arrival he put the gun down, leaning it against the post at the south side of the gap. His wife went from the house up the road to the gap and seated herself on the north end of the rock fill in the ditch, in front of the gap. The graders advanced until the tractor had passed Mrs. Hardisty, and the front wheels of the front grader were within three or four feet of her, when the machinery was stopped. When the tractor passed the gap the defendant was holding the gun in his hand. Just before the machinery stopped, Hupp jumped off the front grader and passed between it and the hedge, advanced toward the defendant who had taken a position at or in front of the gap. As Hupp approached the defendant stepped out and pointed the gun at Hupp’s stomach and ordered him to stop or he would kill him. Hupp was on friendly terms with the defendant and had expressed himself that morning as not expecting any trouble. He requested the defendant to put the gun down, as he wanted to talk with him. There was some conversation and the defendant stated that they were not going through, and to pull around the fill. There is a slight variation in the testimony as to just what was said. The state’s evidence showed that Herían had come up from the rear of the machinery and gave instructions to pull out and go around the obstruction; that Hupp, who had been about six feet from the defendant, left and went out to the road, saying, “No, let it set and call the sheriff”; that the defendant was cursing the crew; said he would kill the first man who moved the rocks; that Hupp, who by this time had stepped to the other side of the grader tongue, and was about fifteen feet from Hardisty, turned and threw up his left hand and said, “You son-of-a-bitch, you would not shoot a man in cold blood”; that the defendant took deliberate aim and fired, the charge striking Hupp in the left eye and he fell to the ground dead. There was evidence that Herían knelt and raised Hupp’s head to examine the wound. That the defendant immediately reloaded his gun, aimed it at Herían as he was kneeling beside the corpse, then lowered it, then aimed again at Herían and said: “You called me a son-of-a-bitch yesterday; call me one to-day. I want to kill you, you son-of-a-bitch.” That Herían replied that he was not calling him one to-day, and went down the road north. That the defendant then gave his gun to his wife, and followed Herían, saying, “Herían is the son-of-a-bitch I wanted.” That the defendant then went to the body of Hupp, stooped to look at it, straightened up, stooped again, took a good look and said, “You son-of-a-biteh, I am. a man of my word.”
The defendant and his wife returned to the house, and a few minutes later went to Overbrook, where the defendant surrendered to Hugh Allen, a deputy sheriff.
The court instructed the jury as to' murder in the first and second degrees. The defendant contends that the court erred in refusing to instruct also on manslaughter.
The sufficiency of the instructions is always to be tested by the evidence in the case. (State v. Curtis, 93 Kan. 743, 145 Pac. 858.) While the weight of the evidence is for the jury, it is the duty of the court to advise them as to the rules of law which govern its consideration. The court may not decide whether or not certain evidence is worthy of. belief, but must always scan it to determine what rules shall govern the jury in its consideration. The court must settle the question as to whether any fact in evidence requires that the jury be informed as to some particular rule of law which applies to it. The court should not indulge in speculation, nor instruct the jury upon mere possibilities which might tend more to bewilder than to enlighten. While the instructions should cover all probable interpretations of the evidence, they should not cover questions which, though possible under the information, are not, in fact, presented by the evidence. (State v. Rhea, 25 Kan. 576; State v. Hendricks, 32 Kan. 559, 566, 4 Pac. 1050.)
The rule is that “Where the defense is self-defense and there is some substantial evidence that would tend to mitigate the homicide to manslaughter, however weak and inconclusive such evidence may appear to the court, it is error to refuse to instruct the jury concerning manslaughter” (State v. Buffington, 66 Kan. 706, 72 Pac. 213), and “Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is the duty of the court to give the law of such inferior offenses; but the court cannot properly instruct a jury upon a degree of the offense which the evidence does not tend to prove.” (State v. Mize, 36 Kan. 187, 13 Pac. 1.) Also that “The court should instruct as to every degree of the crime charged of which the evidence naturally suggests the defendant may probably be guilty, and if, by request for further instruction, the attention of the court is challenged to any other degree of the crime upon which the jury could be justified in finding the accused guilty upon any reasonable construction of the evidence, the court should further instruct as to such degree.” (State v. Newton, 74 Kan. 561, 567, 87 Pac. 757.)
The court must examine the evidence as a whole, and then instruct upon such questions as the evidence naturally, reasonably and probably tends to prove. It cannot properly instruct as to any degree of the offense which the evidence does not tend to prove. (State v. Estep, 44 Kan. 572, 24 Pac. 986; State v. Mowry, 37 Kan. 369, 15 Pac. 282; State v. Kornstett, 62 Kan. 221, 61 Pac. 806.)
“It is true that generally, a charge of murder in the first degree in the common form will include a charge of murder in the second degree, and the court must instruct the jury on all matters of law necessary for its information in returning a verdict; but the court is not required to instruct with reference to a lesser degree unless there be evidence warranting a reasonable inference of guilt in that degree.” (State v. Roselli, 109 Kan. 33, 40, 189 Pac. 195. See, also, State v. Clough, 70 Kan. 510, 79 Pac. 117; Notes 21 A. L. R. 607; 27 A. L. R. 1098.)
“Manslaughter is distinguished from murder by. the absence of malice as a constituent element.” (State v. Clark, 69 Kan. 576, 580, 77 Pac. 287; State v. Ireland, 72 Kan. 265, 83 Pac. 1036.)
To constitute malice, the intent to kill must be the product of a sedate, deliberate mind and formed design, and not the result of hot blood upon sudden and sufficient provocation. (See State v. Murray, 83 Kan. 148, 110 Pac. 103. Also, Craft v. State, 3 Kan. 450, 482; State v. McGaffin, 36 Kan. 315, 13 Pac. 560.)
“Since legal malice does not require ill will toward the victim, the crime may be murder, and murder although the person killed was not the one whom defendant intended to kill.” (29 C. J. 1092.)
Nor is it essential that the intent to kill be unconditional. The defendant argues that he shot in self-defense. Some of defendant’s statements, if considered alone and apart from his other statements and apart from the other evidence, might, by a stretch of the imagination, indicate that he shot in self-defense, but not otherwise. When considered in connection with the other evidence, the surroundings and circumstances, we are convinced there was sufficient evidence of an intent to kill “with that sedate, deliberate mind and formed design” which constitutes malice.
In the following will be found the defendant’s most favorable statements supporting his theory of self-defense.
“I picked the gun up when Hupp jumped off the grader. I held it in one hand part of the time and part of the time in two. I think I had it in my right hand most of the time. I don’t know how long I held it before I pointed it at anyone. I pointed it at Dude Hupp. He was right up close to me. I had the gun on his stomach. He never offered to hit me. After he walked away he turned and called me a son-of-a-bitch and started for me. He held his fist and said, ‘You son-of-a-bitch, shoot me.’ I shot him right after he dared me to shoot. When I shot I thought that Hupp and Herían were going to attack me. When I shot Hupp that morning I shot to kill.”
Mrs. Hardisty testified:
“Hupp turned and crossed the crossing [going out into the road]. He turned towards Frank and raised his hand and took a step and said, ‘You son-of-a-bitch, shoot.’ He had taken one step to the west. I said, ‘Please don’t, Mr. Hupp.’ He never replied to me. He only spoke to Frank. Then Frank shot.”
All the evidence, when considered together, discloses no reasonable basis to support the defendant’s contention that he was in danger of attack. Hupp, according to defendant’s own testimony, had come to within five or six feet, but had not offered to strike; had then left, gone back into the road and even across to the other side of the grader tongue. Herían had just said, “Boys, get on the grader and raise the plates up; we will pull around and leave it go; we don’t want to have any trouble and ain’t going to,” and Hupp had just replied, “Let her stay and call the sheriff.” Defendant also testified:
“Hupp and I had been friends before that. He had worked for me. He farmed some of my land the year before. We had a party at our house in March and Mr. and Mrs. Hupp were there with Mr. and Mrs. Kelley. We were friendly at that time. I never had had any trouble with Hupp until the 10th day of June, 1924.’’
There was evidence that twice on the morning of the tragedy before the killing the defendant announced his murderous intent; that when Hupp dismounted from the grader and first approached, the defendant stepped out from the gap and aimed the gun at Hupp and told him to stop or he would kill him. There was no provocation for this threat. Hupp neither offered to hit the defendant nor did he make any threats. His first words were, “What about this road?” They had been on friendly terms, but the defendant considered they were on hostile terms because Hupp was a member of this grading crew. The defendant was cursing the grading crew and made the threat that he “would kill the first man who moved the rocks.” When this threat was made, Hupp had his back turned to Hardisty and was out in the road, east of the grader tongue, a distance of some fifteen feet from defendant. Hupp turned, threw up his hand but without making any threatening gesture, said, “You son-of-a-bitch, you wouldn’t shoot a man in cold blood, would you?" The shot was then fired, not hastily but with deliberate aim.
Witness Heelan: “Q. Just then. Hardisty shot? A. No, sir; not right away; he took good aim; it seemed quite a while to me.”
In conversation with Deputy Sheriff Allen, the defendant, after stating that he had shot Hupp, stated that he had shot to kill him, and that he did not shoot to miss him; that he wanted them to leave the rocks alone; that they were going to move them, and that he did not want them moved; that he had told them on yesterday that they could not tear them out, and he wanted to make his word good. On their way to Lyndon they met Sheriff Lynch, to whom the defendant stated that he had killed Dude Hupp, and that if he had it to do over he would do it again; that no “God-damned son-of-a-bitch” could call his mother a bitch.
“Mere words, however abusive and insulting, will not justify an assault, nor constitute a sufficient provocation to reduce to manslaughter what would otherwise be murder.” (State v. Buffington, 71 Kan. 804, syl. ¶ 6, 81 Pac. 465.)
The defendant made certain statements referring to his “word.” These statements especially reflected the condition of his mind. His “word” meant that the rocks should not be moved.
(Witness Allen:) “He said he had told them on yesterday that they could not tear them out, and he wanted to make his word good.” .
Neither his act, nor these statements, were the result of a sudden, rash, unconsidered impulse or passion. They were rather the result of reflection and consideration.
“The law carefully distinguishes between a sudden transport of passion, which springs instantaneously from what it allows as a sufficient provocation, and which prompts to an immediate act of violence, and a purpose of revenge which usually follows such passion. In the first case, in condescension to the frailty of our nature, the law allows the provocation to extenuate a homicide committed at the instant from murder to manslaughter. In the other, the provocation furnishing an incentive to revenge, so far from extenuating the crime, is a circumstance to be looked to as evidence of malice; and especially would this be so if the prisoner, in consequence of the provocation, had made threats against the life of the deceased.” (State v. Yarborough, 39 Kan. 581, 590, 18 Pac. 474.)
“While a premeditated, deliberate intent to take life is essential to the crime of murder in the first degree, yet if a party goes to have an interview with another, having armed himself with a deadly weapon with the intent to compel such other to do any certain thing, or upon his refusal, to kill him, such conditional intent to take life is sufficient to make the homicide, if committed, murder in the first degree.” (State v. Kearley, 26 Kan. 77, syl.)
The evidence in the instant case justifies the conclusion that the defendant went to meet the graders with, his loaded shotgun with a determination of preventing them from grading out the rock fills.
To recapitulate: The defendant made statements the first day that they were not going to take any more rock out, and that he would see them to-morrow. He repeated statements at the supper table and at breakfast the next morning that he would be there and that they would not take any more rock out. He went early in the morning to the place where the grader had been left the night before, to see how far away it was; told his wife before going to the field on the fatal morning that he would be at the road when they came back; told Owen after their return from the field that he had told them he would be there when they got there, and that he had told them they were not going through, and they were not going through. His wife and Owen had advised him not to have any trouble over it. He was not excited then nor at any time before the killing. He equipped himself with a more formidable weapon than an injunction from a justice of the peace — a loaded shotgun — and being so equipped, went to the gap to wait for the graders, to make his word good. He picked up the gun before they arrived, although his wife cautioned him while the graders were still thirty or forty feet away, not to pick it up — that he did not need it.
“Q. When you shot at Mr. Hupp that morning, you shot to kill, didn’t you? A. Yes, sir.
“Q. It was not an accident on your part? A. Not a bit of it.
“Q. Did you take aim just the same as if you were shooting anything else except a human being? A. I sure did.”
So much time intervened between the altercation -on the first day and the killing on the second, there was so much counsel against having trouble, so much deliberation and determination on his part that they “should not pass,” so much thought, contrivance and design on his part in possessing himself of the shotgun with which he killed the deceased, it is perfectly apparent he had determined to usé whatever force or means might be necessary to prevent the graders from taking out the fills. Under the instructions the jury might have found the defendant guilty of murder in the second degree or they might have adopted the defendant’s theory of self-defense and found that his act was justifiable. Considering all these matters, the finding was that of murder in the first degree. Under the circumstances we conclude that the trial court committed no error prejudicial to the defendant in refusing to instruct the jury as to the several degrees of manslaughter. (See State v. Yarborough, supra.)
The court instructed the jury that the defendant was presumed to be innocent of the charge against him, and innocent of any degree of crime therein, and of every material fact which the state must prove in order to establish his guilt of any offense whatever, which presumption must continue until every ingredient of the offense charged or of any inferior degree thereof, was proved beyond a reasonable doubt; and where his guilt was so proved, but there was a reasonable doubt as to which of two or more degrees of an offense he was guilty, he could be convicted of the highest degree only of which such reasonable doubt did not- exist. Also, that “if any of the foregoing essentials, viz., malice, intent, willfulness, premeditation, deliberation, design, mode of killing or place of killing was not proved beyond a reasonable doubt,” then they should not find the defendant guilty of murder in the first degree. Also that murder in the second degree must have been purposely and maliciously, but without premeditation or deliberation, and if the essential elements of second degree murder were not proved to the satisfaction of the jury beyond a reasonable doubt, the defendant should not be found guilty of second degree murder. Instructions were also given as to justifiable and excusable homicide. Also, that if they did not find from the evidence that defendant was guilty of murder in the first degree, they might proceed to inquire if he was guilty of murder in the second degree; and if they did not find him guilty of murder in the second degree beyond a reasonable doubt, they should return a verdict of not guilty.
Under these instructions the jury necessarily considered the question of the presence of malice. They were told that if that essential element of murder was lacking it was then their duty to acquit the defendant. Their verdict indicates a finding that premeditation and deliberation, as well as malice, were established by the evidence; for which conclusion there was abundant evidence. With these elements present the crime could not be manslaughter, and the defendant was not prejudiced by the refusal of the court to instruct as to manslaughter. If the verdict had been for second-degree murder there would be room to suppose the jurors might have found the defendant guilty of manslaughter only, if the opportunity to do so had been afforded them. But inasmuch as, having a choice between first- and second-degree murder, they elected the former, there is no reasonable probability that they would have returned a verdict of manslaughter if that issue had been submitted to them.
“We agree with counsel that the court should correctly charge the jury as to all the law applicable to eveiy state of facts fairly suppox-ted by evidence, and that the x’ule declared in State v. Dickson ought not to be extended to unreasonable limits. But where the'jury under proper instructions have found the defendant guilty of evexy element of the superior offense, erroneous instructions, or a total failux-e to instruct with reference to an offense inferior in degree and including less criminality cannot logically be said to have influenced the jury. The failure of the court can only be said to be prejudicial to the defendant on the theory that the jury failed to fully comprehend the definition of the superior degree, or misconstrued and misapplied the law to the facts. To indulge in such presumptions, even though we know that mistakes are made by juries and courts alike, is to overturn the whole theory of the administration of justice.” (State v. McCarty, 54 Kan. 52, 58, 36 Pac. 338. See, also, State v. Dickson, 6 Kan. 209; State v. Potter, 15 Kan. 303; State v. Yarborough, supra; State v. Reed, 53 Kan. 767, 37 Pac. 174; State v. Winters, 81 Kan. 414, 105 Pac. 516; 17 C. J. 352.)
A contention that the evidence did not support the verdict cannot be sustained. It requires no additional discussion.
Complaint of misconduct of counsel in argument to the jury has been considered. It was fully presented to and considered by the trial court on the hearing of a motion for new trial. It embodies no error.
Other alleged errors have been considered, but none appear which would warrant a reversal.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J. f
Ed Axley was prosecuted as a persistent violator of the prohibition law upon an information in two counts, the first charging him with the possession of intoxicating liquor, the second with its sale. He was acquitted on the first count and convicted on the second. He appeals on the ground that if the evidence proved him guilty of selling liquor it also necessarily proved him guilty of having the liquor in his possession. • -
The state’s evidence was substantially to this effect: Two federal prohibition agents made arrangements with one Ira Hudson for the delivery of a gallon of liquor at his house at nine o’clock at night. At that time the two agents and Hudson were waiting at the house. The defendant came into the house with a jug of liquor in his hand. After the liquor had been sampled by those present one of the agents asked the defendant how much he owed him, and paid the amount he named — $12.50. The defendant said the liquor was rye whisky which he had made himself. A Ford coupe with a young man in it was outside and after some further conversation the defendant left in it.
The inconsistency between the two parts of the verdict — the finding the defendant guilty of selling the liquor, but not guilty of its possession, under evidence which if true proved him guilty of both— does not require a reversal. This proposition is fully covered by prior decisions of this court, supported by like rulings elsewhere. (State v. Jackson, 121 Kan. 711, and cases there cited.) The defendant, however, presents several special phases of the matter which invite further comment.
The defendant complains that the jury not only returned an inconsistent verdict, but did so in pursuance of an instruction that they might do so. A part of the charge read:
“You may, if the evidence warrants, find the defendant guilty upon one count and not guilty as to the other; or, if the evidence warrants, find the defendant guilty upon both counts, or not guilty as to either one or both counts.”
It is argued that this was erroneous because it permitted the inconsistency referred to, and that it was prejudicial because it gave opportunity, of which advantage was taken, to return a compromise verdict, whereas if the jurors had been told that if they found the defendant guilty on the second count they must also find him guilty on the first, they might have acquitted him on both. A sufficient answer to this argument is that so far from telling the jurors the evidence warranted a conviction on the second count and an acquittal on the first, the court was at pains to limit the statement that a conviction might be had on either or both counts by the qualification which was twice stated, “if the evidence warrants.” The court was not undertaking to say, and was not asked to say, what verdict the evidence did warrant in respect to the two counts. Doubtless that aspect of the matter was not brought to its attention or considered.
The defendant also argues that in the situation presented by the evidence, the verdict of not guilty of having possession of the liquor was a finding of the nonexistence of an element essential to constitute the offense of selling, and therefore amounted to an acquittal on that charge, so that' a conviction thereof violated the rule against double jeopardy. This feature of the matter was considered in Gozner v. United States, 9 F. (2d) 603, where it was said:
"Neither can we agree with the argument presented on behalf of the plaintiff in error to the effect that the verdict of acquittal on the first, second and third counts has the force of res judicata in any true legal sense with respect to the offense charged in the fourth count. Such argument must rest and proceed upon the theory that the findings of the jury as to such earlier counts were made before the jury considered the question of guilt or innocence under the fourth count. We think that such theory is based upon mere assumption, and is without any substantial basis either of fact or of law. There can, in our opinion, be no presumption that any particular count of an indictment was disposed of by the jury before any other count in the same indictment. The findings and verdict on all of the counts were returned by the jury at the same time, and such findings must be treated as made simultaneously with reference to each other. The doctrine, therefore, of res judicata can have no application.” (p. 604.)
The case is not like State v. McLaughlin, ante, p. 693, where the act charged in one of two counts was merely an essential ingredient of the offense charged in another. Here the defendant’s possession of the liquor appears to have constituted a completed offense before the making of the sale, rendering him liable to conviction on both counts. (State v. Ford, 117 Kan. 735, 232 Pac. 1023.)
The judgment is affirmed.
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] |
The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of forcible rape and incest upon the person of his niece, Amy Odle.
The complaining witness, twenty-five years old at the time of the trial, was afflicted with severe epilepsy. She had stopped school when sixteen or seventeen years old; had never been married. She was afflicted with spells (fits), and had not been well for several years. Had known the defendant (her uncle) all her life. He had made his home with her family the last several years. There was evidence that he attacked her several times. The first time in the kitchen where she was at work and when all other members of the family were out of the house. This occurred in February, and defendant continued to pursue and take advantage of her on frequent occasions as late as September. It appears that he watched for opportunities to commit his acts upon her when other members of the family were away from the house. She was weak, both mentally and physically, which enabled him to gradually win her consent to frequent intercourse, a consent of one who only partially realized the consequences' of the sexual relationship. It appeared that the defendant on more than one occasion said to her: “Amy, I wouldn’t do anything to harm you,” and was thereby able to secure silence after his act of rape until pregnancy became apparent.
The defendant contends that two separate and distinct felonies were charged in the information, for which reason a motion to quash the information should have been sustained. He urges that the acts charged are not of the same general character, and cannot be joined in one information; that incest and rape are not subject to the same kind of evidence; and that proof of incest disproves the charge of rape, and proof of rape disproves the charge of incest. He cites and relies on State v. Hodges, 45 Kan. 389, 26 Pac. 679. The defendant’s contention is not sound, nor does the Hodges case, in our opinion support his view. It was there said:
“Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment; and the defendant may be tried upon all the separate counts at one and the same time; all resting in the sound judicial discretion of the trial court.”
Although the two offenses charged are distinct offenses, they are of the same general nature. This is especially true under the facts here presented for consideration.
“The essential fact of the crime (of incest) is illicit camal connection. The same offense which but for the relationship between the parties might constitute fornication, seduction, adultery or rape, under different circumstances becomes also incest when the parties to the illicit act are within the prohibited degrees of relationship.” (14 E. C. L. 30.)
Essential ingredients of the offense of incest are the relationship of the parties (R. S. 21-906; 14 R. C. L. 30), and the joint criminality — that it can be committed only by the concurrent consent of the man and woman. (State v. Learned, 73 Kan. 328, 85 Pac. 293.)
Here two separate and distinct felonies were charged; one in the second count of the information, the charge of rape, in support of which the state elected to rely for a conviction upon the first act of sexual intercourse testified to by the complaining witness. The other, the charge of incest, in which the state elected to stand upon another act occurring several months later.
Two separate and distinct crimes were joined. They did not relate to one and the same transaction, but were part of a series of closely related transactions, associated with the debauchery of the unfortunate girl by her uncle. Incest and rape belong to the same family of crimes. Illicit sexual intercourse is the foundation of each. They are of a similar character notwithstanding the fact that they may not be committed by the same act, since the crime of rape requires an element of force and the crime of incest an element of concurrent consent.
The question for consideration here is the propriety of joining the two in separate counts of one information. Two distinct sexual felonies, charged under different sections of the statute, each arising from a separate and distinct act of illicit sexual intercourse between the same parties, but on different occasions; the two, however, being closely related by circumstances, time of commission, and each part of a series of criminal conduct on the part of defendant. The' only material difference in the two offenses is that in the crime of rape, charged in count two, the act occurred by force and against the will of the complaining witness, whereas in the crime of incest, charged in count one, the act occurred by concurrent consent of both parties, the crime being based upon the relationship existing between them.
It is largely a question of procedure, a matter resting in the sound judicial discretion of the trial court, whether or not the rights of a defendant will be prejudiced by the trial of the several charges at one time. In the instant case, no showing is made that the defendant was prejudiced in any manner by the joinder of the two counts. In State v. Goodwin, 33 Kan. 538, 6 Pac. 899, it was held that two distinct and separate felonies-one, taking a female under the age of eighteen years for the purpose of prostitution, and the other, taking the same female for the purpose of concubinage-could be joined in one information in separate counts. (See, also, State v. Fisher, 37 Kan. 404, 15 Pac. 606; State v. Bussey, 58 Kan. 679, 50 Pac. 891; State v. Warner, 60 Kan. 94, 55 Pac. 342; State v. Bell, 107 Kan. 707, 193 Pac. 373; State v. John Handrub, 113 Kan. 12, 213 Pac. 827; State v. Saindon, 117 Kan. 122, 230 Pac. 301; State v. Hamilton, 119 Kan. 564, 240 Pac. 416; State v. Miner, 120 Kan. 187, 243 Pac. 318.)
In the instant case the evidence in support of each count was proper against the defendant on the other count, as tending to show the lustful disposition of the defendant, and the existence and continuance of the illicit relationship. (State v. Stitz, 111 Kan. 275, 206 Pac. 910; State v. Bisagno, ante, p. 186.) The record discloses no error.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued for the death of her fourteen-year-old son, Cecil LeRoy Stewart, alleged to have been caused by the negligence of the defendants in leaving powder in a stone quarry where it could be obtained by boys who frequented the quarry and be carried away by them. The plaintiff recovered judgment, and the defendants appeal.
The defendants were husband and wife. Sarah Cloud owned the tract of land in Kansas City. There was evidence which tended to show that a stone quarry was operated on that land by William Cloud; that he also operated a coal yard, in the office of which his wife assisted him and in which powder was stored for use in the quarry; that powder was taken from the coal-yard office to the quarry; that three open cans of powder were left in the quarry in the open air, without guard, shelter or warning sign; that Cecil LeRoy Stewart, while at play in the quarry on Sunday with other boys, found the powder, which consisted of more than one kind, one of which was giant powder; that Stewart took some of the powder and put it in his pockets; that he and the other boys went away from the quarry to the home of Stewart, where some of the powder was burned by Stewart without accident; that powder was then placed in a can and a fuse made of paper was connected therewith; and that the powder in the can was exploded, and upon that explosion the remaining powder in Stewart’s pockets was exploded and he was severely burned, from the effects of which he died a few days later. There was also evidence which tended to show that Sarah Cloud knew of the powder being kept in the office of the coal yard and knew that her husband’s teams were hauling rock. However, she denied that she had any knowledge of his operating a stone quarry on the land owned by her.
The plaintiff relies on the law requiring that those handling high explosives shall use the utmost care, while the defendants rely on the principle that Stewart, being fourteen years old, was presumed to know the dangerous character of the powder, and that he was therefore guilty of such negligence on his part in exploding the powder as prevents recovery. The defendants also rely on the principle that Stewart was a trespasser in the quarry, and that he unlawfully took the powder and exploded it at his home, some distance from the quarry.
The questions argued by the defendants are presented in a number of ways: First, that the court erred in overruling the demurrer of each of the defendants to the evidence of the plaintiff; second, that the court erred in submitting the case to the jury; third, that the court erred in giving instructions under which the plaintiff could recover on proof of the allegations of her petition; fourth, that the court erred in overruling the defendant’s motion for a new trial; fifth, that the court erred in approving the verdict of the jury.
Those who handle gas, electricity or explosives must use the highest degree of care to avoid injury to others. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; Snyder v. Light Co., 98 Kan. 157, 157 Pac. 442; Logan v. Electric Co., 99 Kan. 381, 161 Pac. 659; Pinson v. Young, 100 Kan. 452, 164 Pac. 1102; Edwards v. Kansas City, 104 Kan. 684, 180 Pac. 271; Swayze v. City of Augusta, 108 Kan. 785, 197 Pac. 208, 210; Followill v. Gas & Electric Co., 113 Kan. 290, 214 Pac. 430; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312.)
The defendants quote from 25 C. J. 187 as follows:
“Notwithstanding the fact that the person, injured is a child, nevertheless to impose liability defendant’s act must have been the proximate cause of the injury. So where explosives are wrongfully* carried away from the place in which they are stored by children capable of understanding the wrongful nature of their act, the negligence in keeping or storing cannot be regarded as the proximate cause of a subsequent injury to the child or other children by their use, where defendant had done nothing to invite or provoke the act of the child and there is nothing in the circumstances which would cause it to be foreseen. So likewise the maintenance of a nuisance in the storage of explosives cannot be regarded as the proximate cause of an injury to a child occurring after explosives have been wrongfully taken by him from the premises. These rules apply as well where the child originally taking the explosives gives them to other children who injure themselves.”
The defendants cite other authorities to support their contention. It should be noted that the writer in Corpus Juris says that negligently leaving explosives is not the proximate cause of an injury caused by their explosion where the explosives are wrongfully carried away by children capable of understanding the wrongful nature of their act, where there is nothing in the circumstances which would cause the accident to be foreseen.
Any person using explosives in a stone quarry in a large city’ who leaves the explosives in open cans exposed without anything being done to prevent their being carried away by children should anticipate that children might play in the quarry, might find the powder, might take some of it away, and might explode it and cause injury thereby. The court cannot say that the conduct of Cecil LeRoy Stewart constituted such contributory negligence as prevents the plaintiff from recovering, and this court is not disposed to say that because Cecil LeRoy Stewart took the powder away and exploded it elsewhere the plaintiff cannot recover.
The judgment is affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of selling intoxicating liquor, and appeals.
Two federal prohibition agents went to Iola, and through a man named Bowen got in touch with a taxicab driver named Hill. Through Hill the agents got in touch with defendant, and purchased from him a jar of moonshine whisky for five dollars. Bowen and Hill were given to understand the agents were visiting Iola because they were interested in purchase of cement stock.
Between eight and nine o’clock on the morning of October 5, 1923, Hill took the agents to defendant’s house, about a mile south of Iola, on the South Kentucky street road. Defendant had no liquor at his house, but said he would leave some with Hill. The agents returned to Iola and waited. Defendant did not report with promptness, and the agents concluded they would again go to defendant’s house. On the way they met defendant, and returned to Hill’s taxicab stand.' After some conversation, the agents, defendant and Bowen got into Bowen’s car, and Bowen drove northward on the state highway leading from Iola, a distance of about three miles. Bowen then turned eastward, drove a distance of about half a mile between two rows of hedge, and stopped the car. On the way defendant sat in the front seat with Bowen, and told Bowen where to go and when to stop. Defendant got out of the car and dug out of the ground a jar of moonshine whisky, brought it to the car, and delivered it to the agents, who paid him five dollars for it. On the way back to town defendant related to one of the agents some of his experiences as a bootlegger. The liquor was subsequently delivered to the sheriff, who produced it at the trial.
The state proved the liquor was whisky. Defendant produced an ex-bartender and an ex-liquor salesman, who smelled the liquid and pronounced it ünfit for a human being to drink as a beverage. Defendant also produced a witness who said he was like a dog — he could smell a thing and tell whether he wanted it or not. After smelling the liquid he said he would not want any of it. The county attorney then requested the court to permit the jury to smell the liquor. The request was granted, the jar was passed to each one of the jui’ors, and each one smelled the contents. Defendant made timely objection to the proceeding, and contends the district court ez’red. A juror may not be permitted to give a verdict founded on his own private knowledge. He may not be cross-examined, and the grounds of his belief may not agree with the standards of legal evidence. The court of appeals of this state l'endered some decision to this effect many years ago.
Speaking generally, the argument in support of defendant’s contention is sound. The issue raised by the defendant was not, however, whether the liquor was intoxicating or nonintoxicating, as in the court of appeals cases. The issue was whether its smell was such as to disclose- unfitness for human consumption, and the court and jury observed the demeanor of defendant’s witnesses when smelling. The liquor salesman educated his nose in an old permit drug store, where asafetida and a few other things were frequently kept in addition to the stock of liquor. His facial muscles should have become well disciplined under such training, but they exhibited paroxysm when he cautiously lifted the jar toward his nose. No photographer was in attendance at the trial, and the scene is lost to the movies. The physiognomy of the bartender, who was accustomed to mopping slops from the top of the bar and maintaining a poker face in the midst of groggery stinks, suffered violent convulsion when he took a whiff of the contents of the j ar. Then there was the witness who likened himself to a dog; and his testimony renders it necessary to make a comparative study of the behavior of dogs and men. When a dog sniffs at a substance and determines it is not fit for consumption, what does he do? He takes his nose away from it, moves forward, and expresses his aversion in characteristic dog fashion, but he does not exhibit grotesquery by screwing his countenance. Any dog will keep within the proprieties, and will not be guilty of facial contortion in a public place on account of sense perception derived from contact of odoriferous particles with his olfactory organs. In this instance, when the witness smelled the moonshine, his reaction was decidedly undoglike.
It will be observed there was a gap in the proof to be bridged by inference. The jury were to derive a conclusion respecting potability from observing contortion of features of third persons. Ratiocination could be eliminated by utilizing a form of Dean Wigmore’s autoptic preference, and the court, at the suggestion of the county attorney, adopted the very simple and quite universally approved expedient known in common parlance as trying it on the dog. It is generally known that white mule has a tremendous kick, but the members of the jury were good sports, and took the chance of having permanent waves put in- their visages by smelling the contents of the jar. They did no more than exercise a faculty which they possessed in common with all men, and in view of the circumstances under which the event occurred, and its outcome, this court is unable to declare, as a matter of law, that the district court was guilty of culpable negligence.
In the course of the trial defendant desired to introduce evidence that, previous to the time the prohibition agents made the visit to Iola which led to the transaction with defendant which has been described, the county attorney had become angry at defendant, and had been after him ever since. The court refused to admit the evidence, and in ruling said: “We have stopped trying county attorneys since I have been on the bench, and we will not start in again now.” Defendant contends the remark of the court was prejudicial to him. Perhaps it was, but not in a legal sense, and the practice which has been established in the district court of Allen county is approved.
Defendant’s request for an instruction to the jury on the subject of entrapment was properly denied. The subject was fully considered in the case of State v. Driscoll, 119 Kan. 473, 239 Pac. 1105. The syllabus reads:
“It is no defense to one who violates the prohibitory liquor law that an officer, in order to detect and prosecute him for the violation of the law, solicited him to obtain and sell intoxicating liquor to the officer and that his prosecution for the violations was based on the evidence so obtained.”
In the course of his argument to the jury, the county attorney said the evidence was clear, was, as he believed, convincing, and showed defendant was a bootlegger. Objection was made to the county attorney’s remarks. The court overruled the objection, and, without admonishing the county attorney, directed him to proceed with his argument. The objection, rather than the county attorney’s argument based on the evidence, called for admonition.
The information contained several counts, two of which were submitted to the jury, one for possession of intoxicating liquor and the other for sale. The evidence related to á single transaction, and if defendant made any sale of liquor, it was the liquor which he dug out of the hedgerow, carried to Bowen’s automobile, and delivered to the prohibition agents. The jury found defendant not guilty of having liquor in his possession, and found him guilty of selling liquor only. Defendant contends the verdict is inconsistent, and because the jury found he did not have in his possession the only liquor he could have sold, conviction of selling cannot be permitted to stand. The court has decided adversely to the contention. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Brundige, 114 Kan. 849, 220 Pac. 1039; State v. Graves, 120 Kan. 499, 501, 243 Pac. 1060; State v. Hund, 115 Kan. 475, 222 Pac. 766; State v. Stewart, 120 Kan. 516, 243 Pac. 1057.)
Each count of the information contained a separate charge, and is to be regarded in the same manner as if it were contained in a separate information. The verdict on each count is to be considered on its own merits, independently of the verdict on the other. The verdict of guilty is perfectly consistent with itself. If there be logical inconsistency between the verdict of guilty and the verdict of not guilty, there is no legal inconsistency between them. If there were, the verdict of not guilty merely discloses the lack of restraint on power of a jury to render a general verdict in a criminal case, and there is no ground for holding the verdict of not guilty should control instead of the equally authentic verdict of guilty. While there are cases to the contrary, these views are well sustained by competent authority. (State v. Ridge, [Mo. App.] 275 S. W. 59; Weinecke v. State, 34 Neb. 14; Griffin v. The State, 18 Ohio St. 438; Selvester v. United States, 170 U. S. 262; Weiderman v. United States, C. C. A. 8th, 10 Fed. [2d] 745; Gozner v. United States, C. C. A. 6th, 9 Fed. [2d] 603, and federal cases cited in the opinion; 35 Yale Law Journal, 1013.)
There is nothing else of sufficient importance in the case to require discussion, and the judgment of the district court is affirmed
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The opinion of the court was delivered by
Johnston, C. J.:
Fred Hebert appeals from a judgment of conviction rendered upon a charge of a breach of the peace. The prosecution was instituted before a justice of the peace by the filing of a complaint and the issuance of a warrant charging that on November 20, 1924, the defendant unlawfully disturbed the peace and quiet of I. O. Miller. A trial thereon resulted in a conviction, and the defendant took an appeal to the district court. There he was again convicted, and brings the case here, alleging a number of errors, one of which is that the state was permitted to amend the complaint by adding the word “willfully,” so as to charge the defendant with a willful and unlawful breach of the peace. It is also stated that the complaint was not reverified after the amendment. The statute under which he was convicted provides:
“Every person, who shall willfully disturb the peace and quiet of any person, family or neighborhood shall upon conviction thereof be fined in a sum not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.” (R. S. 21-950.)
The charge that defendant unlawfully disturbed the peace of Miller carries the implication that it was willfully done. However, it does not appear that there was any objection made to the making of the amendment nor to the sufficiency of the complaint as amended. Having gone through the trial without questioning the right to amend the complaint, or that it was not reverified after the amendment was made, defendant is not in a position to raise the question on this appeal.
It is contended that the testimony did not warrant the jury in finding defendant guilty of the charge. It appears to be sufficient. While no personal violence was employed by defendant, there was testimony of abusive language and threatened violence, including the brandishing of a stick which he had in his hand and a threat to mash Miller’s face. There was testimony, too, that at another time he had said to a neighbor that if he ever caught Miller and his brother out he “would beat them damned near to death,” and this statement was brought to the attention of Miller. A threat which tends to produce violence, provoke others to a breach of the peace and causing alarm is an invasion of the peace and security which the law affords a citizen and constitutes a violation of the statute. (9 C. J. 387.) The insulting language and threats as shown in the evidence were calculated to disturb the peace of Miller and he testified that that was its effect.
Considerable is said about the acts of Miller which tended to provoke the unlawful acts of the defendant, but there was a denial of any such provocation.
There is a criticism of the instructions given, but we find no merit in them.
One ground of the motion for a new trial was newly discovered evidence which could not be produced at the trial. An examination of the proposed evidence shows that it was not material and did not afford any ground for setting aside the verdict.
It is urged that the punishment imposed was excessively severe for the offense. The penalty provided by statute is a fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding three months. The punishment imposed was a jail sen tence of twenty days and a requirement that he furnish a bond in the sum of $500 to keep the peace, and in that connection the court made an order of parole as to the jail sentence. Obviously there is no ground to complain that the punishment is excessive.
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of manslaughter in the third degree.
The facts were substantially these: J. E. Welsh was a druggist in Garnett, having operated a drug store there for a number of years. John Reinfeld was and had been for some time city marshal of Garnett. Shortly prior to July 4,1925, the defendant was appointed assistant to Reinfeld. About 2 a. m., July 6, 1925, Welsh, with one Clifford Burch, came out of a restaurant having in their possession a bottle, or some bottles. (It was claimed they were drinking liquor together.) Reinfeld, who was in the shadow of a building near by, was watching for them. He approached and arrested, or attempted to arrest, Welsh and Burch. Welsh got into a near-by alley, proceeded to the street, which he crossed, entering the courtyard. Reinfeld shouted to the defendant, who was not far distant, to intercept or arrest Welsh. The defendant met or overtook Welsh near the entrance of the courtyard and struck him with the butt end of a revolver. A second blow from the revolver rendered Welsh unconscious, in which condition he lingered for about forty-eight hours, when he died. There was a sharp dispute in the evidence as to what the city marshal said to the defendant in directing that he intercept Welsh; also, as to the attitude and actions of Welsh when the defendant struck the fatal blows, i. e., whether Welsh was resisting arrest.
The only question presented on this appeal is whether the court erred in its instructions to the jury. Instructions-were given covering the three degrees of manslaughter. Complaint is made of those which defined manslaughter in the first degree. The defendant contends thére was no evidence upon which to base such instructions, and that they were prejudicial. We are of the opinion the defendant suffered no prejudice from the instructions as to the degrees of the offense of which he was acquitted. (State v. Yeater, 95 Kan. 247, 147 Pac. 1114.) He complains of the failure of the court to use the words “reasonable doubt” in each separate instruction. The court, after fully defining the various degrees and offense contained in the information, gave the two following instructions:
“No. 34. The defendant is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt, and the burden of proof is always upon the state to thus establish his guilt. This presumption of innocence is a presumption that clings to the defendant through every stage of the trial, and is never relaxed until there is a judgment of conviction. It extends to every material fact, element and ingredient of the offense charged, and must be overcome by the state before there can be a conviction. And if you believe the defendant guilty but entertain a reasonable doubt as to which of two or more offenses, (or) degrees of crime, he is guilty, he may be convicted of the lower degree only; that is, of the degree touching which you entertain no reasonable doubt.
“No. 32. These observations are disconnected to some extent by force of circumstances, but they should nevertheless be considered as a whole and no particular instruction should be singled out and made the basis of a conviction or acquittal without reference to the others.”
The charge given to the jury should be read and considered in its entirety. It is not possible to give all the law of the case in one instruction, and where it appears, as it does in this case, that the instructions taken as a whole fairly cover the issues, there is no ground for complaint. (See State v. Killion, 95 Kan. 371, 148 Pac. 643; State v. Atterberry, 59 Kan. 237, 52 Pac. 451; State v. Husong, 109 Kan. 84, 197 Pac. 874; State v. O’Brien, 114 Kan. 703, 220 Pac. 208.)
Other objections to the instructions have been considered. None of them are. deemed to be material or to require special comment.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injury occasioned by a defect in a highway. Plaintiff recovered, and defendant appeals.
The accident occurred at a place known as Horseshoe Bend, on the highway extending from Goodland northward to St. Francis. At Horseshoe Bend the highway makes a sharp turn to the right and curves around the bend of a creek or gulch. At the time of the accident the roadway at the turn sloped toward the north, and there was no guard rail, warning sign or directional marker to indicate the change of direction. On the night of September 29, 1921, plaintiff was a guest in an automobile which approached the turn from the south at a speed of twenty-five miles per hour. The driver did not see the turn until it was too late to negotiate it safely; the automobile turned over and plaintiff was injured. The jury found) specially the place was dangerous, found specially that absence of a fence or warning sign constituted a defect in the highway, and found the chairman of the county board had due notice of the defect. Error is predicated on the action of the district court in refusing to set aside the finding relating to notice.
The road was a county road, and the chairman of the board was called as a witness for plaintiff. His first answer to questions propounded to him was equivocal, but when pressed he admitted he had been over the road and at Horseshoe Bend during the summer previous to September 29, 1921, the date of the accident. Defendant cites the case of Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449, involving a concealed defect, a rotted bridge sill; the case of Finley v. Labette County, 77 Kan. 835, 92 Pac. 1113, involving a defective bridge cable, not brought to the chairman’s attention, the complaint made to him being that the bridge approach was defective; and the case of Valley Township v. Stiles, 77 Kan. 557, 95 Pac. 572, in which the chairman’s informant failed to specify which of several culverts was defective. None of these cases is pertinent. In this instance witnesses testified to conditions which made the defect obvious to anyone traveling on the highway; and the chairman, whose business it was to observe, could not avoid seeing what was patent to everybody else. (Bettis v. Wyandotte County, 116 Kan. 568, 227 Pac. 533.) Within a few days after the accident a warning sign was put up, and the road was later graded to slope from the creek instead of toward it, and was fenced on the north side.
The judgment of the district court is affirmed.
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Tbe opinion of the court was delivered by
Hopkins, J.:
This controversy involves the validity of a post-nuptial agreement. The husband died and the wife sought to avoid its terms. The court held it valid, and plaintiff appeals.
The agreement recited that each of the parties had previously been married; that each had children by a former marriage, and that at the time of their marriage each held and possessed real estate and personal property not in any manner acquired or obtained from or through the other; that each had children from such former marriage living, and that, in consideration of the premises, promises and" covenants of each, it was agreed that upon the death of either of them the survivor should not be entitled to receive or claim any portion or interest in the separate property of the deceased owner at the time of the marriage or acquired by either of them since their marriage to each other.
The plaintiff contends that the contract is not a conveyance; that it did not divest her of her right of inheritance in her husband’s property; that the statute concerning descents and distributions (R. S. 22-108) gives, to the wife one-half of all the real estate-which may have been owned by her deceased husband during the marriage, and which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance; that the land involved had not been sold on execution or other judicial,sale, and is not necessary for the payment of debts, so that, under the plain mandate of the statute, one-half of this land, upon the death of her husband, must vest in her, unless she had made a conveyance thereof. She argues that under the statute, to which reference is made, the methods prescribed by which she could bar herself, or could be barred of the right to inherit the real estate of her deceased husband, are exclusive. That is to say, if the land had not been sold on judicial sale, and is not necessary for the payment of debts, then, and in that event, the only manner in which the wife could deprive herself of this inheritable interest would be by conveyance. Various authorities are cited in support of her contention which are not controlling here. Other theories are advanced to support the plaintiff’s contentions which need not be discussed. This -court has on other occasions had the same or similar question under consideration and decided adversely to the contention of the plaintiff.
In King v. Mollohan, 61 Kan. 683, 60 Pac. 731, it was said:
“Marriage settlements controlling the division and affecting the descent of property, freely and intelligently made, and which are just and equitable in their provisions, are not invalid.” (Syl. ¶[1.)
In Eberhart v. Rath, 89 Kan. 329, 131 Pac. 604, it was said:
“A widow residing and owning lands in this state married a man residing and owning property in Nebraska. As part of the marriage contract it was orally agreed that he should receive nothing of her estate in case she died first, and that she should receive the sum of $1,000 only of his estate in case he died first. After the marriage in Kansas the parties established their home in Nebraska, where they resided for seventeen years, when she died, leaving children by a former marriage and a son by her last marriage. Soon after the marriage the husband and the wife entered into a written contract, in view of the oral agreement, and of the same purport. In this action for partition brought by the children of the former marriage the surviving husband claims one-half of the land in this state owned by his wife at the time of the marriage and at her death. It is held that the written contract is valid and effectual although it does not recite or refer to the previous oral agreement.” (Syl. fl.)
And in the opinion is this language:
“There is no statute in this state that makes a postnuptial contract of this nature void. Apart from the previous agreement it is true that the written instrument was not made upon consideration of marriage, for that had already occurred, but a reciprocal relinquishment by each in the property of the other is sufficient. Reciprocal agreements varying marital property rights are referred to as among the considerations for antenuptial agreements in Hafer v. Hafer, 33 Kan. 449, 460, 6 Pac. 537. Mr. Bishop says: ‘For the principle is well settled, that, though parties marrying must take the status of marriage as the law has established it, and cannot vary it by antenuptial contract, yet, within certain legal limits, and proceeding by legal rule, they may by such contract vary any or all of those property rights which the status superinduces.’ (1 Bishop on the Law of Mamed Women, §427.) While these citations refer to antenuptial agreements, the principle applies to those made after marriage unless the marriage disqualifies the parties from contracting with each other. . . . The instrument would also have been valid had no prior agreement been made.” (pp. 333, 335.)
In Bradley v. Burgess, 109 Kan. 347, 198 Pac. 967, it was said:
“A contract by an old and infirm couple, husband and wife, for the division of their property, in which they agreed to separate because they could no longer continue to live together in comfort by reason of their infirmities and circumstances, and in which it was agreed that the husband, who was ill, should go to the home of a son by a former marriage, where he would receive proper attention, and the wife be relieved of the burden of attempting to look after him, is held, under all the circumstances, a valid contract, and not open to the objection that it violates public policy.” (Syl. It 1.)
A similar question was considered in Marty v. Marty, 111 Kan. 120, 206 Pac. 324, where the court said:
“An agreement was made between a husband and wife shortly after marriage in these words: ‘The undersigned, Jacob J. Marti and Caroline Marti, his wife, both of Grantfork, Madison county, Illinois, hereby mutually agree that the property, both real and personal, owned at the present time by each of us, remain intact for the benefit of each one [one’s] children. That neither party desires to disturb the property rights as existing at the present time.’ Subsequently the husband made a will devising all of his property to his children. After his death the -widow claimed a share of the property and elected to take under the statute of descents and distributions. Held, that under the agreement each party relinquished the right of inheritance in the property of the other.” (Syl.)
In the contract under consideration there is no uncertainty. It specifically provides that upon the death of either of them the survivor shall not be entitled to receive or claim any portion of or interest in the separate property of the deceased owner at the time of the marriage or acquired since the marriage, but that all of such property shall go and belong to the children of the deceased by the prior marriage or persons who would have been entitled thereto if they had never been married to each other.
The contract was made March 21, 1914. The parties were married in 1908. The plaintiff contends that the word “since” made the contract applicable only down to the date of the contract and not as to any subsequently acquired property. The defendants contend that the term was used in the sense of “after” and applied to all property acquired after the marriage. The word “since” is frequently construed to mean “after.” In State v. Mathews, 68 W. Va. 89, it was said:
“The word ‘since’ is not always limited in meaning to the time between the present and a certain past event or to a space of time between two certain past events; it sometimes reaches beyond the present and embraces future time. When used as a preposition ... [it may mean] ‘during or within the time after; ever after; or at a time after; from and after the time, occurrence, or existence of.’ ” (See, also, Jones v. Bank, 79 Me. 191.)
The facts and circumstances surrounding the execution of the contract disclose that the construction which the parties put upon the term “since” was that it meant “after,” and that by the terms of their agreement they were directing the disposition of any property either of them might have at the time of death. At the time of the execution of the contract under consideration the plaintiff executed an exhibit, attached thereto, agreeing and consenting that her husband could will and devise more than half of his real and personal estate owned at the time of his demise. It appears that no will was made, but the exhibit signed by the plaintiff at the time of the execution of the contract in question is expressive of the intention of the parties. The contract in the instant case, in our opinion, shows that the parties used the word “since” in the sense of “after” and that it was their intention that any property of which either spouse died seized should go to the children of that party, as provided by the terms of the contract.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for partition. The defendant, Jacob Ray Lynch, claimed the whole of the estate of Jacob Lynch, deceased, as his illegitimate son. He was defeated and appeals.
The facts are told by the court’s findings which are, substantially, as follows: Jacob Lynch, a resident of Sumner county, single, never having been married, died intestate November 7, 1922, owning certain land in Sumner county. The plaintiff and the defendants, except the defendant Jacob Ray Lynch, are sisters, nephews and nieces of Jacob Lynch, and are the owners of the property by the law of descents and distribution, unless it is found that Jacob Ray Lynch is the son of Jacob Lynch.
For some time prior to November 4, 1893, Gallantine Kinder and Lizena Kinder were husband and wife, and residents of Oklahoma. On November 4, 1893, Lizena Kinder brought an action in the probate court of Canadian county, Oklahoma, to obtain a divorce from Gallantine Kinder. And on December 24, 1893, the probate court of Canadian county entered a decree of divorce granting to Lizena Kinder a divorce from Gallantine Kinder.
Prior to August 14,1893, probate courts in Oklahoma were vested by statute with jurisdiction in divorce cases, but on August 14,1893, the legislature of Oklahoma deprived probate courts of jurisdiction in divorce proceedings and vested exclusive jurisdiction thereof in the district courts of Oklahoma. At the time of the filing of the petition by Lizena Kinder, the probate courts had no jurisdiction in divorce proceedings. And in 1894 the supreme court of Oklahoma decided that all divorces granted by the probate courts of Oklahoma after August 14, 1893, were void. Afterwards, in 1895, the legislature of Oklahoma passed an act declaring that all decrees of divorce granted by the probate courts prior to the passage of such act valid, binding and effectual.
After the divorce proceedings in Oklahoma, Lizena Kinder moved to Missouri, and Gallantine Kinder came to Kansas and went to work for Jacob Lynch. In June, 1895, he sent for his former, or then, present wife, and had her remove from Missouri to the Lynch farm, where she and Gallantine Kinder again assumed the marriage relation, going together for a short time with a threshing outfit, and after a few weeks both returned to the Jacob Lynch farm, where she did the house work and Kinder was employed by Lynch. They lived together at the Lynch place as husband and wife continuously until the latter part of 1898.
The claimant, Jacob Ray Lynch, was bom on December 1, 1899, and there is evidence tending to show nonaccess between Gallantine Kinder and Lizena Kinder after January, 1899, until after the birth of the claimant. Such evidence tending to prove nonaccess of Gallantine Kinder does not satisfactorily or conclusively show nonaccess without including in such testimony the evidence offered by the witness Lizena Kinder.
“If the testimony of Lizena 'Kinder is to be considered in connection with the other testimony showing nonaccess, then it does satisfactorily and conclusively show that Gallantine Kinder is not the father of the claimant Jacob Ray Lynch. . . . Jacob Lynch prior to his death generally and notoriously recognized the claimant, Jacob Ray Lynch, as his son, by oral declarations publicly made.”
Just where Gallantine Kinder was living for something like a year after the birth of the claimant does not clearly appear from any evidence, but the evidence does clearly show that in 1901 he and Lizena Kinder, with her then three children, moved from the Lynch place to another farm in Sumner county, known as the Doctor Spitler farm, resided there for a short time, then afterwards moved to a farm known as the Adrian Logan place, resided there a short time, just how long on either of the farms the evidence does not show; afterwards returned/to the Jacob Lynch farm, and that they all remained on the Jacob Lynch farm until about the year 1906. In the year 1906 Gallantine Kinder left the Lynch farm and Lizena Kinder and the three children remained there until 1911, when they removed to Oklahoma, and that Gallantine Kinder lived with his family in Oklahoma, and died there about 1920.
The court concluded that Gallantine Kinder and Lizena Kinder were never divorced, and at the time the claimant, Jacob Ray Lynch, was begotten they were husband and wife; that the evidence of Lizena Kinder tending to prove nonaccess by her husband, at the time the claimant was begotten, was incompetent and should not be considered, and that the plaintiff and the defendants, excluding defendant Jacob Ray Lynch, were entitled to have the property in controversy partitioned according as their several interests appear.
The appellant argues that there was a' divorce in fact between his mother, Lizena Kinder, and Gallantine Kinder that ended their family life; that they lived apart and understood that their family life was ended, and that whether the divorce was valid or not, it destroyed the family and all the presumptions that have their source in the family life.
We think it unnecessary to consider whether or not the Oklahoma divorce in question was valid, or whether the matrimonial status of Gallantine and Lizena as husband and wife was renewed by their, voluntary act of again living together. The trial court concluded from the evidence that, “If the testimony of Lizena Kinder is to be considered in connection with the other testimony showing non-access, then it does satisfactorily and conclusively show that Gallantine Kinder is not the father of the claimant Jacob Ray Lynch,” and that “Jacob Lynch, prior to his death, generally and notoriously recognized the claimant, Jacob Ray Lynch, as his son, by oral declarations publicly made.”
The finding of the trial court establishes beyond question that Jacob Lynch was the father of the appellant, Jacob Ray Lynch, and that Gallantine Kinder was not. But following the Lord Mansfield rule, which has been approved and followed in many cases, the trial court determined that the evidence of the mother, which conclusively demonstrated the truth, was incompetent and could not be considered. Was it proper to exclude that evidence which, better than any other, demonstrated the truth of the proposition in issue? The ultimate fact in issue — the one controlling fact to be ascertained —was whether Jacob Ray Lynch was the son of Jacob Lynch. The action had been instituted, pleadings framed, trial had and evidence heard- — -all to ascertain the one ultimate controlling issuable fact. The means sanctioned by law for ascertaining in a judicial proceeding the truth respecting the question had been followed. The evidence, if considered, was controlling.
“ ‘The rules of evidence,’ sajes a discriminating writer, ‘are the maxims which the sagacity and experience of ages have 'established, as the best means of discriminating truth from error.’ (Wills Cir. Ev. 2.)” (1 Bouv. 1091.)
“Evidence signifies that which demonstrates, makes clear or ascertains the truth of the very fact or point in issue, either on the one side or the other.” (3 Blackstone’s Commentaries, 367.)
“Evidence is ‘relevant’ when it touches upon the issues which the parties have made by their pleadings, so as to assist in getting at the truth of the facts disputed. . . . Evidence offered in a cause, or a question propounded, is ‘material’ when it is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.” (22 C. J. 65.)
“The best evidence rule — one which from early times has been repfeatedly enunciated by the courts — is that the highest degree of proof of which the case, from its nature, is susceptible must, if accessible, be produced.” (22 C. J. 974.)
“The best obtainable evidence should be adduced to prove every disputed fact.” (10 R. C. L. 903.)
In the recent case of Stillie v. Stillie, 120 Kan. 565, 244 Pac. 844, where paternity was in issue, it was said in the opinion:
“The object for which evidence is introduced in the trial of a cause is to ascertain the truth concerning the facts in issue. The common law rules of evidence have been developed for the purpose of accomplishing that object, not for the purpose of suppressing the truth. This conclusion is supported by 3 Blackstone, 367; 1 Greenleaf on Evidence, 16th ed., § 1; 1 Wigmore on Evidence, 2d ed., § 1, p. 4; and Bouvier’s Law Diet., p. 1091.” (p. 566.)
Dean John PI. Wigmore, who perhaps has investigated the subject more than any other law writer, and has given it his usual careful consideration, says:
“The story of the rule that parents may not ‘bastardize their issue’ is a singular one; though it has had some parallels in other parts of our law. First, a settled rule, then, a chance judicial expression, in apparent contradiction; then, a series of rulings based on a misunderstanding of this expression and an ignoring of the settled rule; then, an entirely new rule, and new and wondrous reasons contrived and put forward to defend the novelty, as if it had from the beginning been based on the experience and wisdom of generations. In the first place, then, there clearly was in the beginning no rule at all against using the testimony of a husband or a wife to prove the nonaccess of the husband as evidence of the child’s bastardy.
“The rule, then, as an independent one, standing by itself, must be based upon some extrinsic ground of ‘decency, morality, and policy,’ in Lord Mansfield’s phrase. But why is such a person’s testimony to such a fact indecent, immoral or impolitic? . . . We learn, then, that the indecency or unseemliness lies in allowing a person to testify to an illicit connection, and that the immorality consists in allowing a parent to give testimony which will ruin his own child’s legal status. The utterly artificial and false nature of the rule could not more forcibly appear than in the inconsistency of these ‘ex post facto’ reasons. (1) There is an indecency, we are told. And yet, in nine cases out of ten, the sole question that the wife is asked is (for example) whether her husband was in St. Louis from 1849 to 1853 during the time that she was in New York. Is this indecent? Moreover, the very next question may be whether during that time she lived with the alleged adulterer; and this (by general concession) is indubitably allowable. In every sort of action whatever, a wife may testify to adultery or a single woman to illicit intercourse; yet the one fact singled out as ‘indecent’ is the fact of nonaccess on the part of a husband. Such an inconsistency is obviously untenable. (2) There is an immorality and a scandal, we are told, in allowing married parents to bastardize their children. And yet they may lawfully commit this same immorality by any sort of testimony whatever, except to the fact of nonaccess. They may testify that there was no marriage ceremony, or that the child was born before marriage, or that the one party was already married to a third person, or their hearsay declaration (after death) to illegitimacy in general may be used. In all these other ways they may lawfully do the mean act of helping to bastardize their own children born after marriage. Where is the consistency here? Of what value is this conjuring phrase about ‘bastardizing the issue,’ if it will not do the trick more than once in a dozen times? Moreover, what shall be said of a system of law which, while thus rebuking parents who come to prove their children bastards, at the same time by its own inhuman prohibition (unique among civilized peoples) has refused absolutely to allow those parents, by any means whatever, to remove afterwards (by legitimation) the consequences of their original error and to give to their innocent children the sanction of lawful birth — a refusal which is still maintained in most of our jurisdictions? That the same law which harshly fixes the stain of bastardy as perpetually indelible should censure parents for the abomination of testifying to that bastardy is preposterous.” (4 Wigmore on Evidence, 2d ed., § 2063, p. 381, § 2064, pp. 387, 388.)
The facts in the instant case emphasize the unsoundness of the Lord Mansfield rule. Appellant’s mother lived at the home of Jacob Lynch. A child was born to her. Jacob Lynch recognized it as his. It was named for its father. It grew to manhood. In the course of the years the father died, leaving an estate which was sought by his sisters, nephews and nieces. In order to substantiate their claims it was shown that appellant’s mother had been the wife of Gallentine Kinder, and that, although Gallentine Kinder and the mother, Lizena Kinder, had been divorced, that the divorce proceedings were ineffective. Being ineffective, the Lord Mansfield rule was invoked to prevent the mother from testifying that Gallentine Kinder was absent during the year 1899. While the mother’s evidence was the best, and was found by the trial court to be conclusive, it was excluded from consideration on the ground that the mother was not competent to testify as to the absence of Gallentine Kinder.
There may be and doubtless are cases in which it would appear to be unseemly and scandalous for the parent to testify to nonaccess at the time of conception. In our opinion the so-called Lord Mansfield' rule is artificial and unsound. Being so, it should neither be used to suppress the truth nor to prevent substantial justice.
In Nolting v. Holt, 113 Kan. 495, 215 Pac. 281, it was said in the opinion:
“Under all the authorities the presumption of legitimacy may be overcome by proof. . . . When all the ends which the presumption of legitimacy is designed to conserve have been defeated by sordid facts, the courts must deal with the situation in a common-sense way. The statute grants to an illegitimate child inheritance from its father. Its mother knows who the father was. Her evidence is the best evidence, and justice to the child requires that she be a competent witness to its paternity.”
The judgment is reversed and the cause remanded with instructions to render judgment for the appellant.
Johnston, C. J., Burch and Harvey, JJ., dissenting.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injury. Plaintiff was defeated, and appeals.
Plaintiff was an employee of defendants, who were road-building contractors. Defendants transported their workmen each day from Cherryvale to the place where they worked, a distance of about -six miles, and back to Cherryvale. Midway between Cherryvale and the front was a rough section of road containing a deep chuck hole. Plaintiff had been over the road many times, and knew of its condition. Workmen were transported in two trucks, each having longitudinal seats behind the cab. James O’Leary, junior, known as young Jim, drove one of the trucks. Plaintiff knew he was a reckless driver. On the evening of the accident several of the workmen, including plaintiff, were delayed in leaving for town, and were to be taken in a truck driven by young Jim. One of the workmen, Cecil Gillen, said to the superintendent of construction, a member of the group, he did not want young Jim to drive so fast, even if they .were late for supper. The superintendent replied he would ride in the front seat and would hold young Jim down. Plaintiff overheard the conversation. Young Jim set out at a speed of from 45 to 50 miles per hour, and maintained that rate of speed all the way to Cherryvale. He did not reduce speed for the rough section of the road, and at the chuck hole plaintiff received a violent jolt, which injured him. Plaintiff did not at any stage of the journey remonstrate with the superintendent or young Jim, or request that the truck proceed more carefully, or do anything to protect himself from injury.
On the basis of the conversation between Gillen and the superintendent, plaintiff requested an instruction on assumed risk. Assumed risk was not pleaded as a defense, and the instruction was properly refused. Contributory negligence was pleaded, and the court instructed the jury as follows:
“No. 9. In these instructions the terms ‘ordinary care,’ ‘due and proper care,’ ‘prudence’ and ‘diligence’ are frequently used. And by these terms is meant such care, prudence and diligence as an ordinary person would use under the same or similar circumstances. Where the need for care or diligence is great, and where the danger arising from lack of care or diligence is great, then the amount of care or diligence must be in proportion to the danger to be averted and in proportion to the effects which are likely to happen from lack of care.
“No. 12. Gentlemen of the jury, you are instructed that a person riding in an automobile driven by the owner, or by his agents, servants or representatives, at an obviously dangerous rate of speed, must exercise ordinary care for his own safety, and if in so doing it becomes necessary, in the exercise of due diligence, to warn the driver, remonstrate with him, or demand that he be given an opportunity to leave the car, and if he fail to do so, and does not take any precaution for his own safety, he cannot recover for the negligent operation of the car by the driver.”
Plaintiff contends the twelfth instruction was defective because the statement with reference to plaintiff’s failure to take precaution for his own safety was not qualified by “when there is time and opportunity to do so,” or similar expression. It was dark in the truck. Plaintiff was at the rear end of one of the seats, other men were between him and the cab, and he questions whether it would have been prudent for him to try to make his way to the cab to attract the attention of the superintendent or the driver. Doubtless the question was argued to the jury, and the jury may have thought that when the truck was found to be in motion at the usual reckless rate of speed, plaintiff could have asked Gillen or a man next to the cab to speak to young Jim, or to the superintendent, who had promised to hold young Jim down.
Plaintiff was required to take due precaution for his own safety, even although he was being transported by his employer. The instructions, given correctly and intelligibly, stated the law, and in the absence of a request for more specific direction were sufficient. Certain evidence excluded at the trial was not presented to the court at the hearing on the motion for new trial, and may not be considered here.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Louisa Fail appeals from a conviction on a charge of having committed perjury while testifying as a witness in behalf of her husband, A. W. Fail, at a trial in which he was convicted of having had sexual intercourse with Ruth Connelly, a girl under eighteen years of age. The testimony on which perjury was assigned was substantially to this effect:
The present defendant and her husband were in Larned together on the evening and night of September 5, 1923, and on the morning of the sixth. She did some shopping at about half past nine that morning and bought goods for which he paid, giving his check (which was introduced in evidence at the trial of the rape case).
It was sufficiently proved that she gave this testimony and that it was false; that her husband was not with her at Larned at the time stated, and that the check referred to had originally been signed by her in her own name, but after it had passed through the bank had been altered by the erasure of her signature and the substitution of that of her husband. A reversal is asked upon the ground that the false testimony was not material to the issue on trial in the rape case.
To support a conviction of perjury the false statements relied upon need not bear directly upon the ultimate fact to be determined. “It is sufficient that they relate to any collateral matter upon which evidence would have been admissible.” (State v. Adams, 119 Kan. 509, 511, 240 Pac. 955.) Mere details introduced with the apparent purpose of giving verisimilitude to a narrative are material. “For a witness knowingly to fabricate details, in order to strengthen his credibility, is as much perjury as is any other false swearing. Hence it has been rightly held that perjury may be committed in swearing falsely to a collateral matter with intent to prop the testimony on some other point.” (2 Wharton’s Criminal Law, llt-h ed., § 1541.) “Thus, falsehood in the statement of collateral matter, not of substance, such as the day in an action of trespass, or the kind of staff with which an assault was made, or. the color of clothing or the like, may or may not be criminal, according as they may tend to give weight and force to other and material circumstances.” (21 R. C. L. 260.)
The state contends that the testimony on which perjury is assigned was in the nature of a partial alibi; that it had some tendency to discredit the story told by the complainant in the rape case by showing the defendant therein to have been elsewhere at the time of the act of intercourse relied upon for conviction, or of some of the other similar acts narrated by her to show the previous relations of the parties. If such is the case the testimony would not be rendered immaterial by the fact that unfilled gaps were left in the alibi. “Whether all the links in the chain of circumstantial evidence necessary to its completion are supplied or not, a witness who has sworn falsely in regard to any link is as guilty as if the evidence fully supplied that and all the other parts.” (State v. Wakefield, 73 Mo. 549, 554.) The materiality of false testimony must be tested by conditions as they stood at the time it was given, not by those existing when the case is finally submitted. (30 Cyc. 1419; Beavers v. State, 124 Ark. 38. See, also, Wood v. People, 59 N. Y. 117.)
In the rape case the time of the act of intercourse relied upon for conviction was definitely fixed by the complainant at September 13, 1923, although it developed she had at one time described it as having occurred about September 10. She testified that a number of other similar acts took place at various times, the exact date being given in but a few cases, of which the earliest was July 29, 1923. Evidence of this kind was admissible and material as showing the relations of the parties prior to the act on which the prosecution was based. (State v. Brown, 85 Kan. 418, 116 Pac. 508.) Referring to instances of intercourse in Edwards county, she was asked: “Most of them were in what month?” She answered: “They were in August and the first part of September.” This was fairly to be interpreted as implying that there were a number of instances in the early part of September. It was shown that no sexual act except the one on the thirteenth took place later than the ninth, and that on the sixth Fail had -left on a trip to Ulysses. This with other evidence practically reduced the time for any other acts in September to the nights from the first to the fifth, inclusive. The testimony of Mrs. Fail that her husband was with her at Larned on the evening and night of the fifth therefore tended to show that no act of intercourse took place in September prior to the thirteenth, unless on the first, second, third or fourth. If this had been followed with a showing of no intercourse on any of those four days an alibi would have been established as to any copulation in September excepting on the thirteenth, and the complainant would have been discredited to that extent. The failure to fill this considerable gap can hardly be regarded as making the testimony of Mrs. Fail immaterial in such sense that perjury could not be assigned with respect to it.
But the case need not be rested on these considerations. During the period covered by the acts referred to the complainant in the rape case lived at Trousdale, in Edwards county, near the south line. She testified in effect that Fail, before gaining her consent to his having sexual intercourse with her, promised to get a divorce and marry her; that he brought an action for divorce a few days later; that “he stayed in Trousdale the biggest share of the time after he sued for divorce until he left”; that he “boarded and roomed at the restaurant mostly.” Another witness testified that Fail stayed with him in the latter part of July, 1923, ‘-‘in fact from the time he left his wife.” Mrs. Fail testified that she lived on a farm a few miles from Trousdale — had lived there with her husband ever since their marriage except for a year spent in Belpre; that she and her husband had lived together practically all that time since their marriage; that he had never been away from home for any length of time.
In view of the story told by the complainant in the rape case the relations between Fail and his wife became a matter of considerable importance. A showing that they were living together on friendly terms would tend to discredit the girl’s version of her own relations with him. Mrs. Fail’s testimony that her husband was with her at Larned on the evening and night of September 5, and the next morning went shopping with her and paid for her purchases — “a dress and a few other little things” — had an obvious tendency to establish that fact, and within the general rules already stated was material to the matter on trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs sued F. W. Casner, individually, and F. W. Casner and Philip Palmgren, doing business as the Interstate Oil and Gas Company, for the contract price to be paid to the plaintiffs for drilling an oil well in Woodson county. No judgment was rendered against Philip Palmgren, nor the Interstate Oil and Gas Company; they have not appealed. Judgment was rendered against F. W. Casner for the amount for which the action was commenced, and he appeals.
The action was tried without a jury, and the court made twelve special findings of fact, the first eight of which may be summarized as follows: That the plaintiffs were partners; that F. W. Casner and Philip Palmgren were not partners as the Interstate Oil and Gas Company; that plaintiff Mendenhall, acting for his partnership, entered into an oral contract with F. W. Casner to drill a well on certain land in Woodson county; that the well was drilled according to the contract; that the oil and gas lease was owned by the Trapshooter Oil and Gas Company and was assigned to the Interstate Oil and Gas Company, of which F. W. Casner was treasurer; and that neither F. W. Casner nor Philip Palmgren owned the oil and gas lease described in the petition. The other findings of the court were as follows:
“Ninth. I find that the Interstate Oil Company was an association of persons purporting to transact business under a declaration of trust and that F. W. Casner was the treasurer thereof, and that during the time when the contract was made, and the well was drilled, had an ample amount of funds belonging to said company to pay for said work and was transacting business for said company practically at his own discretion with full authority to do as he wished with’ reference to the well in controversy, and that he refused to pay for the said well because of his belief that the same was not properly drilled and cleaned.
“Tenth. I find that said defendant, F. W. Casner, was personally interested in having this said well drilled by reason of the fact that he was part owner of the company owning the land upon which the well was drilled and otherwise financially interested in having the same developed for oil and gas..
“Eleventh. I find that at the time he entered into the oral contract with plaintiffs, he urged his personal financial ability to pay for the well as a reason for not having a written contract for the drilling of the same, and at that time led the plaintiffs to believe, and they did believe, that he was personally contracting with them for the drilling of said well for himself, and that at said time his representative capacity was not disclosed or known to plaintiffs, and that thereafter, when the name of Interstate Oil Company was used by the parties, they, the plaintiffs, believed that it was a trade name under which defendant F. W. Casner was carrying on the particular undertaking of drilling said well. I find that the fact is that the said well when completed, was to be, and was, the property of Interstate Oil Company as hereinabove described, and that the defendant, F. W. Casner, knew and intended that this should be, but that the plaintiffs did not know and were not apprised of such fact, in the sense that the Interstate Oil Company was anything different than a trade name under which the defendant, F. W. Casner, was transacting the business, until the work was well under way and until about the time when payment was defaulted and the controversy as to payment arose.
“Twelfth. I find that because of his personal interest in having this said land developed by the drilling of said well, the defendant, F. W. Casner, did assume to contract with the plaintiffs personally as for himself, with the belief that because of his dominating authority over the affairs of the Interstate Oil Company, he could and would thereafter adjust the matter with said company in such manner as he saw fit, and that for the purpose of retaining this matter entirely within his own hands so as to force the development of said land to the extent and in the manner which he wished, he failed to disclose to plaintiffs any fact that would indicate that he was not personally in entire ownership and control of the said leasehold.” '
After the findings of fact had been made, F. W. Casner moved for additional “pivotal” findings of fact, moved to correct the findings of fact made by the court, moved to strike out certain of those findings, and moved for judgment, all of which were denied by the court. At the conclusion of the plaintiffs’ evidence, the defendant demurred thereto. That demurrer was overruled.
It is argued that “the court erred in overruling the demurrer of the defendant to the evidence of plaintiffs.” There was evidence which tended to prove that an oral contract had been made between F. W. Casner and plaintiff Mendenhall for drilling an oil and gas well on real property in Woodson county described and known as The Waterworks Farm for $2.50 per foot and $50 per day for extra work in cleaning out the well, etc.; that F. W. Casner, in response to a request for a written contract, stated, “There is not any use in having a contract. I am worth it. I have to pay”; that bills for material, etc., were made out to the Interstate Oil Company, which the plaintiffs thought was the trade name .under which F. W. Casner did business; and that the plaintiffs had not been paid for the work which had been done by them. That evidence was sufficient to justify the court in overruling the demurrer thereto.
Defendant argues that “the court erred in refusing to make the additional pivotal findings of fact requested by defendant.” Among the findings of fact requested by the defendant was one as follows:
“Second. The court finds that all the acts and things done by F. W. Casner in connection with the well in question were done as treasurer of the Interstate Oil Company.”
The issue involved in this finding of fact was found against the defendant in the ninth, tenth, eleventh, and twelfth findings of fact made by the court. Those findings of fact were supported by evidence which the court must have believed and which contradicted the second finding requested by the defendant. Fourteen other requested findings of fact are printed by the defendant in his abstract. In his motion he alleged, and he now argues, that these fourteen findings were pivotal. An examination of them reveals that they were not ultimate findings of fact. They were findings which, if they had been made, could have been used as a basis for argument in contending that the findings made by the court were not correct and that findings contrary thereto should have been made. Further, these requested findings were evidentiary in their nature, were contrary to the evidence believed by the court, the nature and substance of which evidence is disclosed by the findings that were made. It was not error for the court to decline to make the requested findings.
The defendant’s motion to correct the findings of fact contained the following:
“This defendant further moves the court to correct the findings made to speak the truth upon the undisputed evidence or the weight of evidence covering the elemental facts involved in the issues joined in this action.”
That motion was denied, and of that ruling the defendant complains. The findings which the defendant desires to have corrected were made in response to evidence which sustained them. For that reason it was not error to deny the motion.
Defendant contends that error was committed in failing to strike out findings numbered eleven and twelve and in denying the defendant’s motion -for judgment and his motion for a new trial. These matters have been examined. They are embraced within the other contentions argued by the defendant which have been discussed.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued on an attachment bond. Judgment was rendered in favor of the defendants on the demurrer to the evidence of the plaintiff, who appeals.
Henry G. Matteson sued Guy Burkhalter to recover $1,125 rent on agricultural lands farmed by Guy Burkhalter, and caused an attachment to be levied upon corn raised on the land. The affidavit for attachment contained allegations under the statute providing for an attachment by the landlord when the tenant intends to remove, or is removing, or has within thirty days removed his property or the crops or any part thereof from the leased premises (R. S. 67-527), and also under the general statute providing for an attachment in a civil action for the recovery of money (R. S. 60-901). An attachment bond in the sum of $2,250 was given to secure the payment of damages which Burkhalter might sustain if the attachment were wrongfully obtained. The attachment was levied on 1,000 bushels of corn appraised at $1,200. Burkhalter gave a redelivery bond and retained possession of the corn. The case remained undetermined for almost two years, when it was dis missed by the. plaintiff without prejudice. The present action was thereafter commenced, and in the petition it was alleged that the attachment was wrongfully issued and levied on the corn.
On the trial of the action from which the present appeal is taken, a jury was impaneled and evidence was introduced. Part of that evidence was to show attorney’s fees contracted for in resisting the attachment. That evidence was afterward stricken out. The plaintiff rested, and the defendants demurred to the evidence of the plaintiff. That demurrer was overruled, and the defendants commenced the introduction of their evidence, when further trial was adjourned until the next day. On the opening of court the next morning, the following occurred:
“Ti-ie Court: On the rest of the plaintiff last evening, and immediately upon such rest, the defendants dictated a demurrer to the evidence of the plaintiff: That the evidence was insufficient to sustain an action for damages; that no damages were suffered by the plaintiff; that there was no showing that he should not pay rent to the defendant Matteson; that the proof and pleadings show that the attachment was brought under the landlord and tenant act, which is section 67-527, Revised Statutes of Kansas, 1923, and at such time the court overruled the demurrer to the evidence and called on the defendants to offer their testimony — (Interruption by — )
“Mr. Kite : If it is in the mind of the court to sustain the demurrer to the evidence on account that no showing has been made that the plaintiff in this case was not under obligation to pay rent under relation of landlord and tenant, the plaintiff desires to have the rest withdrawn to offer testimony showing there is no relation of landlord and tenant and no obligation to pay rent, and the plaintiff in this case was in possession of the land as owner, and has been in possession of the land ever since about March, 1918, and not obliged to pay rent to any person or persons. The plaintiff makes this request in the furtherance of justice.
“The Court: The application is denied on account of the condition of the pleadings in case No. 2,501, Henry G. Matteson v. Guy Burkhalter, and on account of various delays; on account of the contradictory state of facts as shown by the pleadings; on account of admissions in the petition and reply; on account of variances in allegations and proof; on account of the fact that all day yesterday was taken in the presentation of the case, and that the court indulged the plaintiff in slow, deliberate and lengthy examination, and gave full and sufficient time to present all matters that he desired to present and of things hereinafter stated, same is denied.”
The plaintiff argues that it was error to strike out his evidence to show his contract for attorney’s fees in resisting the attachment. In Gregory v. Guaranty Co., 105 Kan. 648, 185 Pac. 35, 1041, it was held that:
“Expenses necessarily incurred in procuring the dissolution of the attachment wrongfully issued, including attorney’s fees and the cost of depositions, may be recovered as damages in an action on the attachment bond.” (Syl. ¶ 5. See, also, Parrish v. Brokerage Co., 92 Kan. 286, 140 Pac. 835.)
So far as the recovery of attorney’s fees is concerned, there cannot be any difference between the rule regarding the recovery of such fees in an action on an injunction bond and the rule regarding the recovery of like fees in an action on an attachment bond. In Underhill v. Spencer, 25 Kan. 71, this court said:
“An injunction undertaking was conditioned ‘to pay all costs and damages which may be awarded against them [the plaintiffs] on the final hearing in this cause by the court.’ Held, that the defendant might recover on this undertaking, though irregular in its form, the reasonable fees and charges of his attorney for services in obtaining a dissolution of the injunction. And further held, that actual payment to the attorney of these fees and charges is not a condition precedent to the recovery; it is sufficient if the liability therefor has become fixed and absolute.” (Syl. See, also, note found in 16 L. R. A., n.s., 76.)
It was error to strike out the evidence concerning attorney’s fees for which a contract had been made.
The plaintiff argues that error was committed by the refusal of the court to permit the introduction of further evidence by the plaintiff. The evidence which the plaintiff desired to introduce might have established that the attachment had been wrongfully issued. The evidence was competent, and it should have been admitted. To that extent, the plaintiff did not have a fair trial.
Eor the error in striking out the evidence to show the contract concerning attorney’s fees and because the record discloses that the plaintiff did not have a fair trial, the judgment is reversed and a new trial is directed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages for the seduction of plaintiff’s daughter. Plaintiff prevailed and the defendant appeals.
Sarah, the plaintiff’s daughter, was twenty years of age at the time of the alleged happenings. The defendant, Doctor Stewart, residing and practicing medicine at Atchison, was forty-four, married, and living with his wife. Sarah had come to Atchison about 1919 to attend school. She lived with other families for two years while attending school, afterwards working as a domestic for two years, and was so working at the time of the acts complained of. Doctor Stewart had come to Atchison about 1918. He practiced in the Ferguson family from 1919 on, and attended Sarah’s mother in confinement in September, 1923. He had doctored Sarah for grippe and pneumonia in 1919, and thereafter had been consulted by her for irregular or delayed menstruation. She visited his office sometimes with her mother, sometimes alone, and sometimes with some girl friend. During such time the doctor treated her also for lung trouble and weak heart. She testified, in part, substantially as follows:
“Went to Doctor Stewart’s office for treatment for irregularities in March, 1923. Was there again April 21 (same year) . . . between six and seven o’clock in evening, and was the last one he treated that evening. He did not give me any prescription; said I was all right; his office is on second floor 507% Commercial street, and consists of a waiting room and two smaller rooms, one a consultation room and one where his desk, etc., is. These two small rooms face the street and one has couch in it. . . . Told him I wanted a treatment for my irregularities, and he said I was all right, and he said let’s go to bed, and I said I was afraid to, and he walked out and turned out the light and came up and we had sexual intercourse. The next time I was at his office was May 25, 1923; was there then on account of heart. Gave electrical treatment.....Following defendant’s suggestion again had sexual intercourse. He said I should know I would not get into trouble with a doctor. Was there in June for malaria; got prescription. . . . Next in July, for irregularities; got prescription; he said let’s go to bed, and I said I wanted medicine. No intercourse had then. Was next at his office in August for irregularities. My last period had been May 2. He said I was all fight. Next time I saw him was September at my home; came to lance an abscess in vagina. Next time I saw him was September 21 at his office; I told him then I felt movements; he then told me my condition; said I was pregnant; I said he was the father, and he said he could make arrangements in Topeka or Leavenworth and I could go and it would not cost me anything and I would have protection; I next saw him at his office October 11. He said he had arrangements for me to go to Kansas City. Next saw him at his office October 27; told him I was ready to go; and he said all right, the arrangements were made; he said he would call Doctor Davis and have him meet me; he told me to tell my mother it was some stranger, whose whereabouts I did not know. And told me not to call his name as it would cause trouble with his wife; he gave me a paper at that time, a letter to Doctor Davis.”
The letter, on defendant’s letterhead, dated October- 30, reads:
“Dr. A. Porter Davis, Kansas City, Kan.:
Dear Doctor — This introduces Miss Sara Ferguson, the patient to whom I referred to when talking to you recently. She is from a good family and will enter the institution along the lines you suggested. She is a very deserving girl and perfectly honest. Things may be a bit strange to her at first, but I assured her that she will be fully protected.
Very respectfully, D. L. Stewart, M. D.”
“I was supposed to go October 30. He said it would not cost me anything. I had told my mother about it on October 13; she did not make any objection to my going; I did not tell my father until November 2. . . . When Doctor Stewart gave me this letter I asked him for my railroad fare, and he said it would not be very much and that I could pay that. . . . Mother told father; my folks then objected to my going. On February 8, 1924, I gave birth to a-child, bom dead; weighed 11% pounds. (Witness identified a picture of child, also identified containers of prescriptions given; two of which were for douches.) I used them with fountain syringe. I did not have intercourse with him at any other times; nor with anyone else.”
The defendant complains that plaintiff’s case rested entirely on the uncorroborated testimony of the complaining witness.
There was testimony which may be said to have fairly and reasonably corroborated her story. The prescription bottles and boxes, two of which were for douches, testimony that defendant had made digital examinations of the girl’s vagina, and that he had been treating her for several years for irregularities, indicated a more or less confidential relation existing between them. The testimony of her father and mother that she stated to them that Doctor Stewart was the father of her child, immediately upon discovery of her condition, was a circumstance fairly to be considered by the jury, as was also the letter of introduction which the defendant gave her'for presentation to Doctor Davis in Kansas City. Likewise two pictures of the dead child claimed by the plaintiff to be a good image of Doctor Stewart, which were submitted to the jury.. The baby was large, weighing 11% pounds. The defendant is a large, tall, robust, rugged man, weighing over 200 pounds, having a plump face and distinguished features, while one Fred Taylor, upon whom the defense endeavored to cast the blame for Sarah’s condition, was a small, slender boy, with slender face, weighing about 125 or 130 pounds. Sarah was likewise small and slender.
The defendant contends that the court erred in excluding certain of his testimony, as follows:
“And she said she could not get the money, as she said she and her mother were trying to keep it a secret from the father; and I said if you do not want to tell Charley, sometimes they let these girls come there and work their way through, and I do not know if they do in Kansas City, but they do in Topeka; and they decided they would not go to Topeka, as they were too well known there, and thought Kansas City would be a better place, and I said I would see Doctor Davis about work there as a maid; and I went down there, but not specially — I had Will Mitchum’s wife there — and I saw Doctor Davis and told him about this girl, and said she is from a good family, and they have no money, and what about working her way through.”
f. A motion by plaintiff to strike out was allowed, but plaintiff contends it applied only to the last three lines, i. e., what.the defendant “told Doctor Davis.” Even if the defendant is correct in that the entire quoted paragraph was stricken from consideration of the jury (a matter about which we are necessarily in doubt), the testi mony was not of sufficient moment to prejudicially affect the defendant’s case. Besides, it appears that the defendant subsequently testified fully concerning his version of what was said in reference to the Kansas City arrangement.
“It is a general rule that a party is not harmed and cannot complain of error in the exclusion of certain evidence, when the same, or substantially the same evidence is subsequently admitted.” (4 C. J. 1014.)
“Error in rejecting competent evidence is not prejudicial where the same witness gives the evidence fully on redirect examination or on cross-examination, where the party on whose objection the evidence is excluded questions the witness concerning the same matter, or where the testimony is ruled out on cross-examination and later brought out when the party asking the question makes the witness his own.” (4 C. J. 1017.)
“No prejudicial error results from the exclusion of particular evidence when the facts sought to be elicited are subsequently 'covered in full by the testimony of other witnesses.” _ (4 C. J. 1018.)
Error is alleged because the trial court denied a new trial. The defendant produced newly discovered evidence, which went, however, only to Sarah’s veracity. She had admitted on the trial that she had gone with a boy by the name of Taylor. She was asked if she had been at the place where he worked, and answered that she had not. On the motion for new trial the defendant offered the testimony of one Berger to the effect that he had seen her there about 8 o’clock one morning. He also offered the testimony of a Mrs. Pettis to show that Sarah had made persistent efforts to have Mrs. Pettis’ son meet her. Sarah having testified in effect'that she had gone very little with the boys, and usually when there were several together.
“Ordinarily a new trial will not be granted for newly discovered evidence to impeach a witness. Thus evidence to show that a witness had made statements inconsistent with his testimony or to contradict him on immaterial or collateral matters is seldom ground for a new trial.” (29 Cyc. 918.)
“That newly discovered testimony tending however strongly to impeach and discredit the witnesses of the prevailing party is not ground for our interference with the trial court’s ruling on a motion for a new trial, whether that ruling was the granting or refusing thereof, has often been decided.” (Pittman Co. v. Hayes, 98 Kan. 273, 277.)
In Parker v. Bates, 29 Kan. 597, a new trial was refused notwithstanding a showing that the testimony of a material witness in the first trial was not true.
In State v. Smith, 35 Kan. 618, 11 Pac. 908, it was said:
“As a general rule, newly discovered evidence the purpose of which is to discredit a witness in the original trial, does not afford adequate ground for the granting of a new trial.” (Syl. See, also, Boyd v. Sanford, 14 Kan. 280; Taylor v. Thomas, 17 Kan. 598; Clark v. Norman, 24 Kan. 515; Manwell v. Turner, 25 Kan. 426; State v. Kearley, 26 Kan. 77; Sexton v. Lamb, 27 Kan. 432; Parker v. Bates, 29 Kan. 597; Lee v. Birmingham, 39 Kan. 320, 18 Pac. 218.)
“The granting or the denial of a new trial on the ground of newly discovered evidence is within the discretion of the trial court, and its decision will not be disturbed except where there is a clear abuse of discretion. Thus the denial of a motion has been upheld as within the court’s discretion where the evidence was merely cumulative; where every material fact alleged in the motion is contradicted by counter affidavits; where the evidence, if admitted, could be used only for purposes of impeachment; or where it was of a character which could not reasonably produce a different result.” (4 C. J. 835. See, also, State v. Stack, 116 Kan. 187, 226 Pac. 238.)
A contention that a new trial should have been granted because the verdict was given under the influence of passion and prejudice cannot be sustained. In the absence of a showing to the contrary, we are bound to assume that the jury’s handling of the facts wrought substantial justice, not only to one, but to both of the parties. (See Cox v. Chase, 99 Kan. 740, 163 Pac. 184.)
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover money which had been placed in the hands of the defendant bank for the use of the treasurer of the plaintiff district and which the bank placed to the personal credit of the district treasurer, defendant C. O. McKee.’ Judgment was rendered in favor of the plaintiff, and the Croft State Bank appeals.
The school district voted $15,000 in bonds to obtain money with which to build a schoolhouse. The bonds were sold through the defendant bank to Brown-Crummer Company, of Wichita, for $14,400. The Brown-Crummer Company placed the proceeds arising from the sale of the bonds in the First National Bank of Wichita “to- be deposited to the account of the Croft State Bank, Croft, Kan., for the use of the treasurer of School District No. 42, Pratt county, Kansas.” The Brown-Crummer Company immediately wrote the Croft State Bank as follows:
“We are inclosing herewith, duplicate deposit slip for deposit of $14,400 on May 13, in the First National Bank, for the account of your bank, for the use of the treasurer of School District No. 42, Pratt county,- Kansas, which we trust will be entirely satisfactory to you.”
When the cashier of the defendant bank received information concerning, the deposit in the First National Bank of Wichita, he talked to C. O. McKee and told him that the money had been received. There was evidence which tended to show that in the conversation the cashier told C. O. McKee, “That money has arrived, and for God’s sake keep still about it,” and that McKee told the cashier to place the money to McKee’s personal credit. The money was immediately placed in the personal account of C. O. McKee and was checked out by him for all purposes, personal as well as otherwise. At the time the money was received by the bank, there was an overdraft of $1.19, and there- were then' in the bank unpaid checks of C. O. McKee amounting to a little more than $800. The over-draft was immediately taken out of the account, and the checks then in the bank were paid therefrom by the bank. .Afterward, C. O. McKee on his personal check paid a note he owed to the bank amounting to $2,000. There was evidence which tended to show that this was done at the request of the cashier, who, at the time the payment was made, promised C. O. McKee that if the school district desired the money, “We will see they get it.” The bank knew that the money belonged to the school district, and was the money arising from the sale of the bonds voted for the purpose of building a schoolhouse. Finally, the director and the clerk of the ¿plaintiff district learned that the money of the district had been dissipated, and notified the officers of the bank to stop payment of all checks given by C. O. McKee. Payment was stopped, and at that time there was in the account of C. O. McKee a balance of $3,840.08. He had at different times deposited his own mon.ey in the account, amounting approximately to $2,000 in all. He was engaged in business and used this account in his business.
The bank argues that “there was a total lack of evidence to support verdict and judgment.” Some facts were conclusively established by the evidence; they have been stated. Evidence of the plaintiff on some of the disputed facts has been summarized. The bank received the money for the benefit of the plaintiff. The money was not deposited in the bank in that way. The bank, in depositing the money to the personal credit of C. O. McKee, violated the instructions given to it and thereby misapplied the money. It is argued that the situation was the same as though the bank had placed the money to the credit of the treasurer of the district, and the treasurer had then checked out the money and redeposited it to his personal credit. If that had been done, the bank wrould not have misapplied the money, and it would not have been responsible for the misappropriation of the money by the treasurer of the district. The bank first misapplied the money received, and thereafter continually consented to its misappropriation by the treasurer of the school district. The bank should have placed the money to the credit of the treasurer of the school district in his official capacity, not in his personal capacity. The evidence was sufficient to support the verdict and the judgment.
-The bank argues that “the court erred in its instructions as to what would constitute actionable participation by the bank in McKee’s breach of trust.” This complaint is made of the last part of the twelfth instruction, which reads as follows:
“If you find and believe from the evidence that the managing officers of said bank at the time the funds in question were deposited in said bank knew that said funds, to wit, $14,400, were the proceeds of the sale of the school bonds in question, and you further find that said funds were deposited in said bank in the name of the defendant C. O. McKee or to his individual account, and that the said C. O. McKee issued checks on said funds drawn on said defendant bank, then I say to you that in that case it was the duty of the defendant bank to honor the checks of the said defendant McKee, and that the defendant bank incurred no liability to the plaintiff for paying such checks, unless you further find and believe from the evidence that the defendant bank participated in a misappropriation of such funds or in the breach of trust on the part of the said defendant McKee, or that said checks were paid under such circumstances as charged the defendant bank with notice that the said McKee was violating his trust as treasurer of said school district.’’
The complaint is directed specifically to that part of the instruc tion which is here italicized. With this instruction should be considered instruction No. 6, which reads as follows:
“6. In this case if you find and believe from the evidence that the defendant bank, through its managing officer or officers, knew that such defendant bank was given credit for the sum of $14,400, and that it knew at that time that such sum was the proceeds of the sale of certain school bonds issued by the plaintiff and sold to Brown-Crummer Company, and that such proceeds, although deposited to the credit of C. O. McKee and in his name, were the property of the plaintiff and- not the property of the defendant, C. O. McKee, and you further find that the Croft State Bank, through any of its managing officers, solicited, induced and knowingly permitted the said defendant, C. O. McKee, to check against said funds in payment of his personal obligations to the defendant bank or to other persons, and that such checks were charged against said funds so belonging to the plaintiff and the plaintiff’s said funds were thereby depleted, and that thereafter demand was made upon the defendant bank by the plaintiff or any' of its officers for the payment of such sums, and such demand was refused by the defendant bank, then I say to you that the plaintiff would be entitled to recover from the defendant an amount equal to the sum so checked out by the said McKee out of said funds so belonging to the plaintiff in the manner hereinbefore stated, not exceeding the sum of $14,400.”
There was no reversible error in the instructions.
The bank urges that “the court erred in denying our motion to limit the judgment notwithstanding the verdict.” What has been said disposes of this contention. The bank unquestionably owed to the plaintiff the amount on deposit in the account at the time payments out of it were stopped. That amount has been stated to have been $3,840.08. The bank concedes that judgment should have been rendered for that amount, but argues that judgment should not have been rendered for a greater amount because it had no control over the manner in which the treasurer drew on the account. The fault with the argument is in the fact that the bank first misapplied the money and afterward consented to its misappropriation.
There are other assignments of error, but they are not argued in the brief and will not be discussed, except to say that they have been examined, and none of them can be sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This appeal involves a question of pleading. The petition contains five causes of action. In the first, plaintiff alleges defendant was her agent to rent certain farms; that he was authorized to rent them for cash, $450 each per year; that he did in fact rent them for $640 each per year, but did not report that fact to her, and the suit is to recover the difference. The second and third causes of action are for small items of interest growing out of the alleged agency. In the fourth the plaintiff seeks damages for an alleged slander, and in the fifth she seeks damages for an alleged assault.
Defendant filed a motion to require plaintiff to make her petition more definite and certain in some particulars and to strike out specific language as stating conclusions or being redundant. This motion was sustained. Plaintiff complains of that ruling. There is no merit in this complaint, for three reasons: (1) The ruling of the court is not an appealable order (R. S. 60-3303; Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 139); (2) it was made more than two years before the appeal was taken (R. S. 60-3309); and (3) plaintiff complied with the order by filing an amended petition, to which a similar motion was directed, which was overruled.
Defendant answered at length, denying all the allegations of plaintiff’s petition. Plaintiff filed a motion to strike out portions .of this answer as redundant and stating conclusions, and to require it to be made more definite and certain in some particulars. The court sustained this in part and overruled it in part, and plaintiff complains because it was not sustained in its entirety. This ruling is not sub ject to review, for two reasons: (1) Because it is not an appealable order, and (2) because it was made more than a year before the appeal was taken. Defendant filed an amended answer complying with the order of the court. Among other things, answering plaintiff’s first cause of action, defendant alleged that his appointment as agent for plaintiff was in writing, and set out a copy of it, which provides in substance, among other things, that defendant should rent the farms for $450 each per year net to plaintiff, and that he should have as his commission any sum for which he could rent the farms in addition to that; that he did rent the farms for $640 each, with an agreement that the tenants were to be credited for certain work done upon the premises for the benefit of plaintiff, and that he accounted to plaintiff in accordance with the instrument by which he was appointed such agent.
In her reply plaintiff admitted that she signed the written instrument set up in defendant’s answer, but sought to avoid its effect by allegations concerning the circumstances of its execution. The court sustained the defendant’s demurrer to this portion of the reply, and plaintiff has appealed from that order. The sole question before us is whether this reply pleads an avoidance of this written instrument. The reply is to.o lengthy to copy in full. It alleges, in substance, that when defendant presented to her for her signature the writing by which he was appointed agent to rent her lands, she did not have her glasses with her and could not read without them; that she-so informed him; that defendant had known her for many years and knew she could not read without her glasses; that defendant then undertook to read the writing to her and to state to her its contents; that for the purpose of deceiving and defrauding her he omitted to read, or to state, the provision in the writing by which he was to collect and have for his fees all over the stated amount to be paid plaintiff; that defendant was acting as agent, attorney and adviser of plaintiff, and that she believed and relied upon the statements he made to.her as to the contents of the instrument. We regard this as a sufficient allegation of avoidance. (Shook v. Manufacturing Co., 75 Kan. 301, 89 Pac. 653; Disney v. Jewelry Co., 76 Kan. 145, 90 Pac. 782; Burns v. Spiker, 109 Kan. 22, 202 Pac. 370; Trust Co. v. Gill, 113 Kan. 261, 214 Pac. 413; Tractor Equipment Co. v. Ayers, 115 Kan. 769, 225 Pac. 115.)
Appellee cites and relies upon Donald-Richard Co. v. Shay, 110 Kan. 351, 203 Pac. 1105. The principle was recognized, but not. applied in that case, for the reason that the evidence did not support it.
The third paragraph of the reply details the circumstances under which an extension of the writing was executed. We think the allegations in the reply, both as to the execution of the instrument and the extension thereof, are sufficient as against a demurrer.
The judgment of the court below will be reversed with directions to overrule the demurrer to the reply.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from a conviction and sentence upon a charge of statutory rape. The complaining witness, who was under the age of eighteen, testified to repeated acts of sexual intercourse with defendant; that as a result thereof she became preg nant, and that she advised defendant of that fact. She further testified that defendant talked of means of getting rid of the child, and named a doctor whom he said would get rid of it for her; but there is no evidence that either of them talked to the doctor about the matter. She further testified that defendant took her to the home of his married sister, in Leavenworth; told his sister the trouble she was in, and that the sister told her, in defendant’s presence, that she could get her some medicine which would relieve her. That a few days later defendant again took her to the home of his sister, who gave her a bottle of medicine and told her to take it and it would relieve her. She further testified that she took the bottle of medicine home and later gave it to her father. Her father testified that he delivered the bottle of medicine to the. county attorney, to be used in the trial of the case. The county attorney testified that he delivered the bottle with its contents to a local physician for examination; also, that he sent a portion of the contents to the drug laboratory of the state university. The local physician testified that the bottle contained a mixture of turpentine and some other oil, thought to be castor oil.
Appellant makes two complaints of this evidence. The name of the county attorney had not been indorsed on the information. This was noticed when he took the witness stand. The court then permitted the name to be indorsed, over defendant's objection. This ruling is complained of. The indorsing of additional names of witnesses on the information, even during a trial, rests -in the sound judicial discretion of the trial court, and material prejudice in a ruling thereon must be clearly shown before it constitutes reversible error. Here the witness simply traced the custody of the bottle of medicine, a matter concerning which there was little or no controversy. The ruling was not erroneous.
It is next contended the contents of the bottle of medicine were not sufficiently analyzed, nor described, nor shown to be suitable or capable of producing an abortion. But defendant was not being tried for producing an abortion, nor for attempting to do so. He was being tried for having had sexual intercourse with a female person under the age of eighteen years. Evidence of the pregnancy of the complaining witness within time to be the result of carnal acts concerning which she testified is competent as showing that some one had sexual intercourse with her. (33 Cyc. 1476; State v. Miller, 71 Kan. 200, 80 Pac. 51.) The evidence of defendant’s efforts, on being advised of her pregnancy, to provide some method by which she would be relieved of that condition, is competent as tending to be an admission on his part of his responsibility for her condition, and hence as an admission that he had had sexual intercourse with her, as she testified; but whether the means suggested, or the medicine furnished, are suitable or adequate for that purpose, is of little importance. There was no error in the ruling of the court upon this question.
Appellant complains that his motion for a new trial was overruled. As shown by affidavits in support of the motion, the question arises in this way: At the trial the state completed the introduction of evidence about the middle of the afternoon of November 12. Defendant contends he was surprised at the testimony of the complaining witness, and others, as to the bottle of medicine, and denies that his sister furnished the same, and all knowledge of or connection with it. He introduced evidence until court adjourned that evening. Then his mother and brother went to Leavenworth, a distance of about twenty-five miles, to interview the sister and to have her present to testify in behalf of defendant when court opened the next morning. They found the sister’s baby, less than a year old, seriously ill with pneumonia, and requiring the constant attendance of its 'mother. The attending physician certified to the serious illness of the child, necessitating the constant care of its mother. The next morning the trial proceeded, with no intimation of this situation being made to the court, and with no request for a continuance until the witness could be present, nor for time to take her deposition. The affidavit of the sister was presented on the motion for a new trial, in which she stated that the complaining witness had never been at her home in Leavenworth, that she had never talked with her nor furnished her any medicine, and that her brother, the defendant, had never mentioned the matter to her. Appellant contends that he did not have a fair opportunity to present his evidence in contradiction of the story of the complaining witness. The record discloses, of course, that he used no diligence in the matter. He knew, as early as the opening of court on the morning of November 13, that it would not be possible for his sister to be present. Yet, vital as he now regards this evidence, he chose to proceed to trial without it, and risk his case upon his own denials of the trans action. He chose to so submit the case, and he must now abide by the result. Since the court knew nothing of the inability of this witness to be present, no error was committed by proceeding with the trial — neither was it error to refuse a new trial because of the inability of this witness to be present.
Finding no error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
T. E. Cloud was prosecuted upon a charge of stealing wheat of the alleged value of $35. He was found guilty of grand larceny and appeals from the judgment of conviction.
In the brief filed in his behalf it is frankly stated that the issue in this appeal is whether the evidence is sufficient to support a verdict of grand larceny. Some argument is made questioning the theft of any wheat by defendant, but there is enough testimony in the record to uphold that finding. The real contention of defendant seems to be that there was less than $20 worth of wheat stolen, and for that reason there was no justification for finding him guilty of more than petit larceny. Raile had a granary about 100 steps from the highway into which he had put 523 bushels, according to machine measure. After talcing out a load of 59 bushels and two or three bushels for feed, he returned to the granary a few days later and discovered that considerable wheat had been taken out, and from the appearance on the surface of the grain he estimated that 25 bushels had been removed. Automobile tracks along the side of the granary where the ground was soft were plainly visible. These were followed from the granary to the road near a bridge, and under this bridge nine gunny sacks of wheat containing about two bushels each were found. A neighbor of Raile saw the sacks -under the bridge on Sun day evening, August 23, and when he went back about five o’clock on the Monday morning following, he found the wheat had been taken away. It was admitted by the defendant that he had taken the wheat from beneath the bridge during the night, had taken it to an elevator in Bird City and sold it about six o’clock in the morning. A check was given by the purchaser for the wheat, but the defendant asked that it be made out in the name of Dewey Cramer. In explanation of giving a fictitious name defendant later explained that he had heard a conversation at a restaurant the morning of the sale about wheat having been stolen, and being a stranger and thinking he might be suspected he had the check made out in the name of Dewey Cramer. He did not present the check for payment until several days had elapsed, and when he did he was arrested upon a charge of larceny. It may be said that defendant claimed he was hauling wheat for a neighbor, and that in traveling over the highway near the granary mentioned he found his truck was overloaded so that he could not well drive it up a hill near the bridge, and hence unloaded nine sacks of the wheat and placed them under the bridge, and that afterwards he went back and loaded the wheat and took it to market. Pie states that he went there in the nighttime because it was necessary that he should be back when the threshing began on the morning of the next day. It appears that the tracks of the truck leading from the road to the granary and back again to the bridge were carefully examined by three of the witnesses who testified that they corresponded with the impression made by the wheels of defendant’s truck. Plaster casts of the impressions made by the truck tires were made and used as evidence on the trial and their sameness pointed out. In addition an officer who was conveying defendant to jail after the preliminary examination, testified that he asked the defendant “how he came to go to that granary?” and that defendant replied that, “he did not have a full load.” Later, however, the defendant said to the officer that he was not at the granary.
The evidence in the case, not all of which has been related, fairly tends to show the theft of at least nine sacks of the wheat containing about eighteen bushels. In respect to the value of the wheat taken it appears that the price of wheat of the grade of defendant’s at the time was $1.45 per bushel, and manifestly if it was shown that the quantity mentioned was stolen by defendant the offense committed was grand larceny. He contends that the testimony of Raile, the owner of the wheat, failed to show that more than five bushels were stolen. In Raile’s testimony he stated that when he returned to the granary after having taken out a load of wheat the depression or the hole made in the wheat in the part of the granary from which it was taken indicated to him that about twenty-five bushels had been taken. Upon cross-examination he admitted that the measure so given was only a rough estimate, that as a matter of fact he could not say exactly how many bushels had been taken, nor could he sáy positively that more than five bushels were taken. The state, however, did not rely alone on the estimate of Raile, made upon a view of the wheat in the north end of the granary from which the wheat had been taken. It appears that the witness was unwilling to-venture a positive opinion of the quantity taken as evidenced by the depression on the top of the wheat. He only undertook to give a rough estimate of quantity by a comparison of the appearance of the surface of the wheat when last seen by him and the hole made in it since that time by the removal of wheat. There was testimony as to the quantity hidden under the bridge and also the testimony as to the quantity threshed and placed in the granary, the quantity taken out by the owner before the theft, and the quantity remaining in the granary after the theft, and this testimony tended to show that more than twenty-five bushels had been stolen. Some of the testimony tending to show the larceny of the wheat as well as the quantity appropriated, was circumstantial in its nature, but it is not necessary to cite authorities that the elements of the offense, including the corpus delicti, may be established by circumstantial evidence.
We are of the opinion that the evidence was sufficient to warrant the finding that defendant stole wheat from Raile, that the value of the wheat stolen was more than, $20 and that defendant was properly convicted of grand larceny.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the custodian of three children to compel officers of Union School District No. 1 of Clark county to transport the children to school. The writ of mandamus was denied, and plaintiff appeals.
The statute provides for transporting to school pupils living more than two miles from the schoolhouse, and provides further as follows:
“In cases where it is impracticable to reach certain places by a laid-out route of travel, said school district board may fix a compensation for the carrying of pupils living in such out-of-the-way places, to reach the regularly laid-out route, and such compensation shall be paid to the parents of such pupils whenever such special regulations shall be approved by the county school superintendent.” (R. S. 72-603.)
The school bus traveled a laid-out route. The board determined it was not practicable to operate the bus to plaintiff’s farm, and determined that the nearest point to which it was practicable to operate the bus was the Small farm, three miles distant from plain tiff’s farm. The board offered plaintiff forty cents per day per pupil as compensation for carrying them to and from the Small farm, and the special regulation was approved by the county superintendent.
The board had authority to make the regulation. Whether it was practicable to reach plaintiff’s farm was a question for the board to determine. The board’s determination of that question was not reviewable by the district court, and is not reviewable by this court, for the purpose of testing the soundness of the board’s conclusions from the facts. The board, with the approval of the county superintendent, is the body which must solve transportation problems, not the courts, and the only subject; of judicial inquiry is whether the board acted in bad faith, or in a manner so manifestly oppressive, discriminatory or unjust as to be equivalent to bad faith. In 'this instance, bad faith was not even alleged. The district court understood the law, approved the board’s action after full investigation of the facts, and the appeal to this court is without merit.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
A dispute arose as to h.ow much land was covered by a deed executed in 1908 by Mary Sweeney to Leo Vanhole. She brought this action of ejectment against him to recover the tract in controversy. Judgment was rendered in her favor and he appeals.
Prior to 1903 the Kansas river ran in a southeasterly direction south of the land owned by the plaintiff, forming its southern boundary. The flood of that year caused a sudden change in the channel of the river, which was shifted a little to the north at a distance varying from something over 400 feet at the west and to something less than 200 at the east end. The approximate relative position of the two channels is shown by the sketch' on the opposite page, made from a plat introduced in evidence.
There was testimony that the plat from which this sketch is made was accurate, but it seems probable that the two channels were nearer together at the east side than is here indicated. The deed described by metes and bounds the land conveyed, the boundary line beginning at the center of section 9 and following the directions
and distances indicated approximately (although not with entife accuracy as to distances) by the double line on the sketch from that point to the one designated as B.. The line from A to B is described in the deed as “thence south thirty-three degrees west four chains and five links, to bank of Kansas river.” The description in the deed then continues: “thence along said north bank of the Kansas river in northwesterly direction to intersection of west line of southeast quarter of section 9, township 10, range 12, thence north on said line to point of beginning, containing 12.8 acres, more or less.”
The defendant claims that the north bank of the Kansas river referred to in the description in the deed is the north bank of the old channel according to the government survey of 1862. The plaintiff contends that the reference is to the channel cut in 1903 as shown on the foregoing plat, so that the land in controversy is that lying between the north bank of the original river bed and the north bank of the new channel, amounting to some ten acres. While no special findings were made, the trial court manifestly held in favor of the plaintiff on this issue, and the holding is supported by the evidence. A plat of the boundary according to the deed, and of the old north bank of the river as shown by the government survey, was introduced and shows that the south end of the line A-B does not reach the original river bed by two and a half chains, but is upon what appears to be the meandered line of the north bank of the channel referred to as cut in 1903. It was shown that later in 1903 the channel again shifted to a point some two miles south, although some water remained in the new channel of which we have been speaking, and also in the original river bed, and at times of flood the water filled both channels and covered the intervening land as well. It is not important to consider which of the three channels referred to could with the greatest propriety and accuracy be described as the Kansas river. Plainly the newest one, two miles to the south could not have been intended. The newer of the two that might possibly have been in the mind of the draftsman, of the instrument could as appropriately as the other be so designated, and the terminus of the part of the boundary line that is indicated by explicit courses and distances seems clearly to show that to have been the intention.
The defendant invokes the rule that in the case of inconsistent calls in a metes and bounds description courses and distances must yield to monuments, and especially to natural objects. If here the deed had in terms made the south boundary of the land conveyed the north bank of the Kansas river as it was located when the government survey was made that principle would doubtless apply. But in the situation shown by the evidence as already stated the phrase “north bank of the Kansas river” applied at least as readily to the nearer and more recent channel as to that which was further away and older.
In the defendant’s brief it is said that the trial court assumed without evidence that there was a difference between the description by course and distance and the material objects which were named as boundaries in the deed. As we see it, the evidence showed that the description of a material object named as a boundary in the deed (the north bank of the river) might apply to either of two objects (the bank of the original channel and the bank of the newer one); and that the courses and distances were consistent with one and inconsistent with the other. In that situation there seems no room for doubt that the interpretation to be adopted is the one which avoids an inconsistency.
There was also evidence that a survey was made before the deed was drawn, showing 12.8 acres north of the new channel. The price paid was $1,916, of which $300 was on account of buildings. The agreed price was $125 an acre. This leaves $16 of the amount unaccounted for, although it may have been included in the allowance for the buildings. The plaintiff says in effect that the survey was to ascertain how many acres the defendant was buying. The defendant in effect says he was buying the whole tract down to the old river bed, but was paying for it at the rate of $125 an acre for the then tillable land, which extended only to the new channel.
The plaintiff paid no taxes on the land after 1908, and the will by which she acquired title described the whole tract as containing fourteen acres. These considerations do not appear to us, however, as in conflict with the conclusion we have announced.
The suggestion is made that when the water receded from the channel of 1903 the bed became an accretion to the land north of it and passed as appurtenant thereto by the plaintiff’s deed to the defendant. This theory is untenable, for the change made in the bed of the river was by avulsion and the title to the bed of the new channel remained in the original owner. (State, ex rel., v. Turner, 111 Kan. 302, 207 Pac. 223.)
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought in the name of the state* on the relation of the county attorney of Neosho county to test the-validity of the establishment and organization of a rural high-school district in Neosho county. The trial court held and adjudged that the establishment and organization of the district attempted was illegal and void, and enjoined the defendant officers from extending and collecting taxes on property within the proposed district. Defendants appeal.
A petition for the organization of the district was presented to the board of county commissioners on April 13, 1925, asking the calling of a special election to vote on the .proposition of establishing and organizing the district and also to vote bonds for the erection of a school building. Pursuant to the petition the board ordered that an election be held on May 6, 1925, but because of a defect in the publication, the board issued another call based on the same petition for an election to be held on July 7, 1925, to vote on the question of organization, but did not submit the question of voting bonds for the erection of a school building. An election was held at that time and the proposition was carried by a majority of fifty-four votes. The proceedings appear to be valid, providing there was sufficient taxable property within the proposed district to warrant its organization. The amount of taxable property within the district is the contested question and the turning point in the case.
“That in the formation of all high-school districts within the state of Kansas, the basis for organizing and operating the same shall be the value of the property as determined by the tax assessment within\ the boundaries of districts so formed, and no consideration shall be given to or used in estimating the expense of so organizing and operating such high-school district other than the actual assessment and taxation value of all the property therein determined and fixed by the proper assessor.” (Laws 1925, ch. 241, § 1.)
“That no high-school district shall be organized within the state of Kansas the aggregate value of property of which, as determined by the returns of the tax assessor, shall be less than two millions ($2,000,000).” (Laws 1925, ch. 241, § 2.)
In his first inspection the assessor returned a valuation of $1,-987,381. This return was made the latter part of May, 1925. Later, and on July 25, the assessor in looking for property which had escaped his notice, found one parcel of property of the value of $4,750, and also intangible property to the amount of $10,600, and made return of the same to the county clerk. Then on August 3, an additional item of the value of $300 was returned. On August 4, a return of additional personal property, a drilling rig, of the value of $2,000 was made, and another return was made on August 4 of an assessment of additional real estate to the value of $6,100. The returns so made by the assessor of escaped property amounted to $23,750, and all these returns were sent in after the first return was made. It was shown and found by the court that $15,050 of mortgages had been filed of record with the register of deeds on property owned by persons within the district, on which the statutory fees had been collected. It is contended that only the valuation first returned can be considered in determining the taxable property within the district, and that any property omitted or improperly assessed can only be brought upon the tax rolls in a particular way pointed out by statute, which if not followed does not give authority to the assessor to return omitted property or be considered as a basis for the formation of a school district. Further, it is contended that the county clerk, who is the county assessor, did not comply with the requirements of the statute by serving notice on the owners of the omitted property. It does appear that he sent a post card to the owners of the property assessed, but it is said that this notice is jurisdictional, as the owners of the property must be given five days’ notice in which to appear and answer questions touching the taxability of the property.
On the part of the district, it is contended that the post-card notice is the customary and a legal method employed in adding omitted property. The assessor had been requested by the county clerk, according to the regular custom, to go over the district again and pick up any property omitted on the first inspection. On the first return the taxable valuation of the district lacked $12,619 of coming up to the two million valuation necessary to the formation of a high-school district. The "picked up” property returned after the first inspection and report added a valuation of $23,750, aside from mortgages of the value of $15,050 owned by residents of the district and upon which the statutory fee had been collected between March 1, 1925, and May 25 of that year. Taking the taxation value of all the property in the district as fixed by the proper assessors there was sufficient basis for the organization of the district without giving consideration to the mortgages on which the fees had been collected. The manifest purpose of the legislature was that there should be sufficient taxable property in the district to provide adequate support for a high school, and the statute is to be interpreted in the light of this purpose. The question is not determinable by a first or partial return of an assessor, but is governed by the taxation value of all the property in the district as fixed by any proper assessor. The first section of the controlling act provides that in determining the valuation—
“No consideration shall be given to or used in estimating the expense of so organizing and operating such high-school district other than, the actual assessment and taxation value of all the property therein determined and fixed by the proper assessor.” (Laws 1925, ch. 241, § 1.)
Was there sufficient taxable property in the proposed district to reach the statutory requirement as fixed by the proper assessor before the district was organized? The legislature has provided that property not expressly exempt shall be subject to taxation. (R. S. 79-101.) It does not appeal! that any of the omitted property subsequently assessed was exempt or not subject to taxation. The objections are that it was not included in the first report of the deputy assessor, was not assessed in due time nor in the proper way. The property subsequently added was located in the district and it was subject to taxation. It was assessed by the proper officer and a return of the assessment made to the county clerk. Property does not escape taxation and is not to be eliminated from consideration in determining the taxation value because it was not assessed on a first inspection of the deputy assessor. It was the duty of the county clerk, who was acting as an assessor with supervision over the appointed deputies, to correct returns of omitted property and charge the taxpayer with the proper amount of taxes on any property subject to taxation which was omitted or undervalued, and this he could do at any time before the final settlement with the county treasurer. (R. S. 79-1432.) Another statutory provision is that—
“It shall be the duty of the county clerk to assess at a fair value the property of any person liable to pay taxes which the county assessor has failed to assess, and to place the same upon the tax roll,” etc. (R. S. 19-314.)
It is suggested that this provision has become obsolete by reason of later legislation. In its present form it was included as a part of the revision of 1868. (Gen. Stat. 1868, ch. 25, § 53.) A statute was enacted in 1876 relating to the correction of assessments which covered in part the powers vested in the county clerk by the earlier act. That act has remained in the statutes since 1868, and was included in the report of the revision commission and was reenacted by the legislature of 1923. It cannot be regarded as without force in any case to which it is applicable; The duty to assess omitted property did not end with the first return of deputy assessor, and if the assessor had failed to do his duty its performance could have been compelled even after .the tax rolls had been turned over to the county treasurer. (State v. Holcomb, 81 Kan. 879, 106 Pac. 1030.) It is further argued that the added assessments were ineffective for the reason that sufficient notices were not given to the taxpayers. As has been stated written notices were sent to them through the mails, and there is nothing to show that any taxpayer has complained of a lack of notice, and nothing has been shown to the effect that the property was not taxable or had been improperly assessed. The statute provides that a five days' notice shall be given by leaving a notice with the taxpayer if he be a resident, and if a nonresident it may be sent through the post office, and this is to be done before entering the increased valuation on the tax rolls. The sufficiency of the notice is a personal right of the taxpayer and is a question to be raised by him if he objects to an assessment. Since it does not appear that the property owners have made any objection or taken any exception to the'assessment made, the added property cannot be excluded from consideration in determining the valuation of the taxable property in the district as fixed by the assessor. Mere in-formalities or irregularities by the assessors in the making of the return does not vitiate the assessment or, the tax based thereon. (Johnson County v. Hewitt, 76 Kan. 816, 93 Pac. 181.) A substantial compliance with the statute has been made. A valuation of the added property has been fixed by the assessor, and this assessment and valuation has not been questioned by the persons for whose protection it was given, and has never been set aside. We think that taxable property so assessed prior to the completion of the organization of the district should be treated as a part of the taxation value of the district.
Under the act it was essential that there should be the required valuation before the organization of the district. Organization was effected when the officers were elected and had qualified. An election of officers was held on August 4, 1925, and later the persons previously elected qualified and proceeded to the performance of their duties until the present action was begun on August 7, 1925. Before the organization was completed, omitted property to the amount of $23,750 had been assessed by the officers and a return made to the office of the county clerk. On July 25, 1925, enough omitted property had been added to make the aggregate assessed valuation of the district more than the standard amount fixed by the legislature. To reach a decision in this case it is unnecessary to consider the status of mortgaged property in the district which amounted to $15,050 upon which fees had been collected. An assessor does not assess and make a return of that class of property, but the assessment has been made by the legislature and is paid in what is called fees. This process is a substitute for an ordinary property tax, and the payment of the prescribed fees relieves the mortgages from other taxation. Whether it should be considered- as taxation value under the statute in question may be left for future decision when the inclusion of such property is necessary to a determination of a controversy. Under the admitted facts and findings of the trial court its decision should have been given in favor of defendants.
The judgment is therefore reversed, with the direction to enter judgment for the defendants.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for the balance due on promissory notes. It is brought by the payee against the maker’s purchaser of a stock of merchandise, who agreed to pay it as a part of the purchase price. The jury returned a general verdict for defendant and answered special questions. The court sustained plaintiff’s motion for a judgment in its favor upon answers to special questions, notwithstanding the general verdict, and defendant has appealed.
As -shown by the pleadings, instructions and special findings, the circumstances giving rise to the controversy are in substance as follows: Mrs. Loomis and her daughter owned and conducted a millinery business at El Dorado. They were indebted to several wholesale firms, and also owed the plaintiff bank on the notes involved in this case. They sold this stock of merchandise to Mrs. Skinner, who took possession thereof. By the written agreement ■between them, Mrs. Skinner gave to the sellers her note for a part of the purchase price and agreed “to pay the following bills due from first party.” This was followed by a list of bills which the purchaser agreed to pay, and included the notes due plaintiff. There was a provision in the contract that the parties thereto would ask the creditors to give Mrs. Skinner time-in payment of such bills, and if consent thereto could not be had within ten days, the purchaser was at liberty not to complete the agreement to purchase and return the property to the sellers. The court instructed the jury, among other things, that if Mrs. Skinner took possession of the stock of goods and retained such possession after the ten days’ period, she was bound by her agreement to purchase. In answer to a special question, the jury found that Mrs. Skinner took possession of the stock of goods purchased in September, 1923; that she never offered to turn it back to the sellers; that she remained in possession of it until November, 1924, when she took from the place of business property which had not been purchased from the Loomises. Under this finding the jury, had it followed the instructions of the court, should have found for the plaintiff. No complaint is made of the instructions, and since the evidence is not before us, we must assume that the evidence justified the finding, and that the instruction was proper; hence, there is no error in the court rendering judgment for the plaintiff on the special findings. In Stove Works v. Caswell, 48 Kan. 689, 29 Pac. 1072, it was held:
“Where property is sold, and the purchaser agrees to pay 'the consideration therefor, or a portion thereof, to a creditor of the vendor, the purchaser, as between himself and the vendor, becomes the principal debtor.” (Syl. See, also, Mfg. Co. v. Burrows, 40 Kan. 361, 19 Pac. 809; Mumper v. Kelley, 43 Kan. 256, 23 Pac. 558; Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65; Bank v. Livermore, 90 Kan. 395, 402, 133 Pac. 734.)
Appellant cites the case of Burton v. Larkin, 36 Kan. 246, 13 Pac. 398, but the cases are not at all similar. There Burton had agreed with one Clark to advance him money for certain purposes, but he never agreed to pay any of Clark’s debts to anyone, hence the court held he was not liable for a debt which Clark later incurred to Larkin.
Appellant argues that every reasonable presumption is in favor of a general verdict, and special findings should be harmonized with it, if possible, and that special findings will not justify the setting aside of the general verdict unless they are so inconsistent with it that the latter cannot stand. These rules of law are perfectly sound. It is also true that a general verdict cannot stand if the special findings are inconsistent with it (R. S. 60-2918), and that is the situation we have here. If Mrs. Skinner completed her purchase of this property under the contract as alleged by plaintiff, she became obligated to pay the sum due plaintiff on its notes. (See cases, supra.) Her contract gave her only ten days in which to determine whether she would complete the contract, and when she took possession of the property and remained in possession of it for more than a year, as the jury found in answer to a special question, she became fully liable.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a promissory note. The defense was that the note was without consideration, had been executed for the accommodation of the Citizens State Bank of Manhattan, was to be returned in thirty days, and that it had been diverted from its original purpose more than a year after its maturity. J. C. Wilhoit, the original plaintiff, died while the case was pending, and the action was revived by his executrix, who was sole legatee and devisee. Trial to a jury, on controverted facts, resulted in a general verdict for defendants, with no special findings. The plaintiff appeals.
The plaintiff claimed and there was evidence tending to show that 'the Citizens State Bank had held a $7,000 note signed by A. E. Irish and C. A. Seavall; that Seavall had signed the note as an accommodation to Irish; that Irish, Henry and Seavall were in the bank at the same time, on May.7, 1920; that the $7,000 note was taken up and a new one was executed by them, signed by Seavall and Henry, and payable to Irish; that Irish indorsed it to the bank, that the three had a conversation with S. J. Pratt, president of the bank, at that time; and that after the note was signed it was placed with the assets of the bank.
The defendants claimed, and there was evidence tending to show, that while the note on its face was payable to Irish, that when it was executed Irish was not present and nothing was said with reference to its being for his accommodation, but that the president of the bank asked the defendants to give the note to the bank as an accommodation for thirty days; that it would be returned to them at the end of.that time; that they read the note hurriedly, saw the printed words “The Citizens State Bank,” and thought the note ran to the bank as payee; that after the note had matured, its return was requested, but the officers of the bank said they could not find it; that about a year after its maturity, Wilhoit, who was a director of the bank, purchased from the bank $38,000 of paper for $25,000; that sixteen months after the maturity of the note he exchanged some of the notes he had previously purchased for the one in controversy ; that nothing was ever said by the officers of the bank to the defendants about the note after its execution; and that no attempt was.made to collect it by the bank. There was also testimony that when Seavall signed the original $7,000 note with Irish, that Irish turned over to Seavall other commercial paper amounting to- $8,700, and that four or five days before the execution of the note in controversy Seavall returned the $8,700 of paper which he had received from Irish, at which time the bank delivered to Seavall the $7,000 note.
The plaintiff contends that the court erred in admitting evidence of the oral agreement between the defendants and the president of the bank and in instructing the jury that such agreement was a defense; that there was no fraud in the execution of the note, and that the plaintiff was entitled to a directed verdict. She also argues that the maker of a note cannot defend an action thereon by showing an oral agreement made at the time of its execution to the effect that he should not be held liable, for the reason that to allow him to do so- would be to violate the rule forbidding the introduction of evidence to vary the terms of a written instrument.
The plaintiff cites, among other cases, Naef v. Potter, 226 Ill. 628, a case involving-an accommodation note given to the payee for use as collateral to a note held by the bank. The court said that the transferee, after maturity of an accommodation note, takes it stripped of all defenses which may have existed against it. It is said, in Brannan’s Negotiable Instruments Law (3d ed., p. 126), that this was “a case upon an instrument made before the adoption of the negotiable instruments law.” The court, without citing any cases on the point, held that the transferee after maturity, with knowledge of the fact of accommodation, but without knowledge of the agreement not to negotiate the instrument after maturity, could nevertheless recover against the accommodating party. It would now be otherwise in Illinois, since section 29 (Neg. Inst. Law), as adopted in Illinois, has an additional clause which restricts the transfer after maturity to cases where there is proof that “a transfer after maturity was intended by the accommodation party.” (See, also, Corrigan v. Harris, 207 Ill. App. 291. Also note' in 11 L. R. A., n. s., 1037, where a digest of cases may be found.)
Plaintiff cites various authorities to sustain her general contention (Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174; Stevens v. Inch, 98 Kan. 306, 158 Pac. 43; Bank v. Paper Co., 98 Kan. 350, 158 Pac. 44; Investment Co. v. Gamble, 102 Kan. 791, 171 Pac. 1152; Trust Co. v. Danforth, 103 Kan. 860, 177 Pac. 357; Underwood v. Viles, 106 Kan. 287, 187 Pac. 881; Bank v. Pirotte, 107 Kan. 573, 193 Pac. 327; Bank v. Coerber, 113 Kan. 498, 215 Pac. 285), which are not applicable to the facts here. For instance, she relies on the case of Bank v. Watson, 99 Kan. 686, 163 Pac. 637. The question there was whether the bank or one Blitz was the accommodated party. It was determined that Blitz was the accommodated party rather than the bank. It was there said:
“The note was not executed to enable the bank to obtain money from some one else, but to enable Blitz to obtain more money from the bank. The defendant’s credit was not lent to the bank, but to Blitz, the effect of the transaction being to enable Mm to borrow upon the credit of the defendant after the credit which the bank under the law could extend to him had been exhausted. The circumstance that the bank was desirous of doing the business, and that the defendant was moved by friendship for the bank rather than for Blitz — by a desire to help the lender to earn interest rather than by a wish to' aid the borrower in obtaining a loan — does not affect the legal relation of the parties. The situation is entirely different from that presented in Means v. Bank, 97 Kan. 748, 156 Pac. 701, where it was held that a bank was bound to protect the maker of a note executed to it, for its accommodation, the proceeds of which it received and retained. Here the money was lent to Blitz upon the strength of the note signed by the defendant, without which the loan could not have been made. The circumstance that the president of the bank told him that the loan was otherwise secured, and that he would not have to pay it, does not alter the fact that it furnished a consideration for the note.” (p. 689.)
“The accommodated party is he to whom the credit of the accommodation party is loaned, and is not necessarily the payee, since the inquiry always is as to whom did the maker of the paper loan his credit as a matter of fact.” (8 C. J. 254.)
In the instant case there was ample evidence to sustain the general finding of the jury that the bank and not Irish was the. accommodated party. The general verdict necessarily included a finding that the note was executed for the accommodation of the bank without consideration, and with the'agreement it should be returned to the makers at the end óf thirty days.
The plaintiff cites Evans v. Speer Hardware Company, 65 Ark. 204, and Nickerson v. Ruger, 84 N. Y. 675. In both cases the paper was negotiated before maturity. Marling v. Jones, 138 Wis. 82— another case cited by the plaintiff-is criticized by Professor Bran-nan, dealing with section 29 of the negotiable instruments law, in an article in 26 Harvard Law Review, 493, quoted in Brannan’s Negotiable Instruments Law (3d ed.), p. 122. In Marlin v. Jones, supra, however, there appears to have been no claim of diversion as in the instant case, the only claim being- that an accommodation maker, where the paper was negotiated after maturity, could as sert the defense of no consideration. The court in the Marling case said:
“No doubt there exists a class of defenses in favor of the accommodation maker of negotiable paper which may not be urged in cases where the note is fair on its face and negotiated in due course before due to a purchaser' for value, without notice or knowledge of any infirmity, but which might be urged in favor of the accommodation maker if the note were overdue when negotiated. But the fact that the accommodation maker received no consideration is not one of these defenses so long as the note was negotiated by his express or implied authority.” (p. 90.)
In the instant case the note was negotiated without the consent of the defendants and contrary to The agreement found by the jury to have existed between the parties.
In 1 Daniel on Negotiable Instruments (6th ed.), 828, it is said:
“If there was an agreement, express or implied, not to negotiate an accommodation bill after maturity, the weight of authority is justly to the effect that such agreement would constitute an equity attaching to it upon its transfer after maturity.”
In Joyce on Defenses to Commercial Paper, § 385, it is said:
“The maker of, or surety on, an accommodation note has the right to determine what use shall be made of the same and may impose material or immaterial conditions or terms in regard to its use, and one who takes the paper with knowledge of the terms and conditions imposed will be subject to the defense that there has been a diversion of the instrument from the use contemplated. Thus, it is said that: ‘If accommodation paper is given for a particular purpose, and that purpose is known to the holder at the time it is taken, a diversion of the paper from that purpose or misappropriation of it will release the party giving the accommodation from all responsibility.’ And such a defense is, as a general rule, available against all parties except one
who occupies the position of a bona fide holder.” (See, also, Benjamin v. Rogers, 126 N. Y. 60; McAdam v. Cooke, 6 Daly, 101; Rochester v. Taylor, 23 Barb. 18; The Olds Wagon Works v. The Bank of Louisville, 10 Ky. Law Rep. 235; Thompson v. Poston, 1 Duv. 389 [Ky.]; Bowman v. Van Kuren, 29 Wis. 209; Quebec Bank of Toronto v. Hellman, 110 U. S. 178.)
In Cottrell v. Watkins, 89 Va. 801, the court said:
“Accommodation paper, without consideration, is a most important factor in the commercial world. Such paper crowds every avenue of commercial enterprise. Why, then, subject the makers, indorsers, or acceptors of such paper to this species of outlawry, by denying to them the defenses guaranteed to the makers, indorsers, and acceptors of negotiable paper for value?
“We know of no sufficient reason upon which to found any such doctrine, nor do we believe the ingenuity of man can suggest one. The reason, and the only reason, given in the books is, that it is ‘considered that parties to accommodation paper hold themselves out to the public, by their signatures, to be bound to every person who shall take the same for value, to the same ex tent as if paid to him personally.’ This is no reason whatever for the distinction, as precisely the same reason is applicable to the parties to paper for value.” (p. 817.)
The better reason favors the rule that the purchaser of an accommodation note after its maturity gets no better or greater right to enforce it against the maker or indorser than if it were ordinary negotiable paper given for value.
In Osborn v. McClelland, 43 Ohio St. 284, an action to foreclose a mortgage securing an accommodation note, it was shown that there was an agreement that the note and mortgage were to be held in the bank for thirty days, at the expiration of which time they should be returned. They were not returned, and after maturity of the note the bank, in violation of the agreement, indorsed it to Mc-Clelland. There, the court said:
“Under the terms of the loan by her, they (the bank) had express authority from her to use it temporarily, but not having exercised that authority their continued possession was permissive merely and as between her and the bank, without authority to use it. If, in violation of their trust, they had negotiated it to an innocent holder before due, the doctrine that where one' of two innocent parties must suffer, the one that so acts as to give rise to the injury, rather than the one who is not to blame, should be the loser, would apply, but this has no application to the purchaser of an after-due negotiable instrument. In that respect th.e purchaser takes only the title which his transferor or indorser had.” (p. 298.)
Many of the courts' hold that the rule that one who takes a note after it is due takes it subject to the equities to which it is liable in the hands of him from whom he takes it applies to paper drawn, indorsed or accepted for accommodation. (Bacon v. Harris, 15 R. I. 599.)
“An indorser who acquires a note after maturity, takes it subject to all defenses existing in favor of the maker as against the payee or other party for whose accommodation it was made.” (Glasscock v. Smith, 25 Ala. 474. See, also, Chester v. Dorr, 41 N. Y. 279; Bacon v. Harris, 15 R. I. 599; Bower v. Hasings et al., 36 Pa. 285; Peale v. Addicks, 174 Pa. 549; Kellogg v. Barton, 94 Mass. 527 [12 Allen]; Whitwell v. Crehore, 8 La. 540; Cummings v. Little, 45 Me. 183; Cottrell v. Watkins, 89 Va. 801; Osborne v. McClelland, 43 Ohio St. 284; Livermore v. Blood et al., 40 Mo. 48; Battle v. Weems, 44 Ala. 105; Coughlin v. May, 17 Cal. 515; Simons v. Morris, 53 Mich. 155; Note, 46 L. R. A. 753, and eases cited 773.)
In 2 Am. & Eng. Ann. Cas. 256, the annotator says:'
“The decided weight of American authority, and apparently the sounder rule, is that a transferee from the party accommodated, taking accommodation paper after maturity, though he gives a valuable consideration therefor, takes only his transferor’s title, and has no higher right against the accommodation party than he would have in the case of the purchase of ordinary commercial paper under similar circumstances.” (See, also, Altoona Bank v. Dunn, 151 Pa. St. 228; Bowman v. Van Kuren, 29 Wis. 209; Brush v. Scribner, 11 Conn. 388; Rylee v. Wilkerson, 134 Miss. 663; Schlamp v. Manewal, 196 Mo. App. 114.)
“The law recognizes the right of the accommodation party to impose any restrictions, conditions or limitations upon the paper that he sees proper. [1 A. & E. Encyc. of L., 2d ed., 393.]” (Naef et al. v. Potter, 226 Ill. 628.)
The note here in controversy was not only accommodation paper and negotiated after maturity, but it was negotiated in violation of the agreement made when it was given. (See Riverside Bank v. Jones, 78 N. Y. Supp. 325; Coghlin v. May, 17 Cal. 515; Blenn v. Lyford, 70 Me. 149; Cottrell v. Watkins et al., 89 Va. 801; and Mackay v. Holland, 4 Met. 69.)
The plaintiff was not a holder in due course (R. S. 52-202) and necessarily took the note subject to all equities between the original parties. (R. S. 52-508.)
In Rice v. Rice, 101 Kan. 20, 165 Pac. 799, it was said:
“Although the terms of a written obligation, assumed to be valid, cannot be varied by parol, it may be shown by parol what caused the party thus to obligate himself, and thereby test the question whether he is legally bound, as the writing imports, or whether he is by any cause wholly or partially freed from liability thereon.
“In a foreclosure suit between the immediate parties to the note and mortgage, parol evidence is always admissible to show a failure of consideration or that the note and mortgage were given merely as accommodation to the payee.” (Syl. ¶¶ 1, 2.)
In the opinion it was said:
“The negotiable-instruments law (Gen. Stat. 1915, § 6543) authorizes the testimony of which the plaintiff complains. It reads:
“ ‘As between immediate parties, and as regards a remote party other than a holder in due course, . . . the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument.’ [R.S. 52-216.]
“The finding of the court that at the time of the delivery of the mortgage it was understood and agreed between the parties that the mortgage was to be used only for the accommodation of plaintiff in case he so desired, but otherwise was not to become of any force or effect as a lien upon the property, that it had not been so used but remained in the possession of the plaintiff at all times since, is a finding of the facts which brings the case within the section of the statute just quoted.” (pp. 24, 25.)
In National Bank v. Stroup, 104 Kan. 11, 177 Pac. 836, this court said:
“It is further contended that the oral testimony of the things said and done by the officers of the bank for the purpose of showing fraud, a lack of consideration for the note, and that it was not to be enforced as an actual obligation, operated to vary and contradict the note and should have been excluded. As between the immediate parties, it was competent to show the purpose for which the note was given, that it was executed merely for accommodation, and was without consideration. This testimony may be received without trenching on the rule that oral evidence cannot be used to vary the terms of a written contract.” (p. 13.)
Since between the immediate parties parol evidence is proper to show the purpose for which the note was given, then it necessarily follows that parol evidence is proper against one who is not a holder in due course.
The plaintiff's testator, having purchased the note after maturity, was charged with knowledge that it was negotiated to him in violation of the agreement under which it had been given.
The judgment is affirmed.
Johnston, C. J., not sitting.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action on a policy of insurance for $1,000 which defendant issued on the life of Mrs. Helen Bozich in 1922. The named beneficiary was Marko Bozich, husband of the insured.
The consideration for the policy was the payment of semiannual premiums of $14.44 payable in advance. One of the privileges of the policyholder was that after payments of premiums for three years defendant would loan on the policy an amount up to its cash surrender value. If the loan and unpaid interest thereon were not within the eash-surrender value, the policy would become void after one month’s notice. Paragraph 5, subparagraph 3, provided that if default in payment of any premium should continue for three months and if the policy were not returned for its cash-surrender value, it would be continued for a reduced amount of paid-up insurance.
Another provision of the policy was paragraph 10, which, in part, read thus:
“10. If, after this policy has been in force one full year, and before default in the payment of any subsequent premium, the company receives due proof that the insured before attaining the age of sixty years, has become wholly and permanently disabled by bodily injury or disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, the company will waive payment of each premium as it thereafter becomes due during the insured’s said disability.”
Other provisions of the policy read:
“No agent is authorized to waive forfeitures or to make, modify or discharge contracts, . . .
“It is understood and agreed:
“2. That no agent, ... or any other person except the officers at the home office of the company, has power on behalf of the company: . . . (b) to bind the company by making any promises respecting any benefits under any policy issued hereunder.”
On the back of the policy was certain printed matter under this caption:
“Notice to Policy-Holder
PLEASE READ YOUR POLICY PROMPTLY UPON ITS RECEIPT.”
This notice admonished the policyholder to notify the company of any change in his address; to give his policy number when writing to the company; to remit payment of premiums by check, draft, or money order payable to the order of the company. This notice also instructed the policyholder touching the time and place of holding its elections of directors and the policyholder’s privilege of participating in such elections. It also contained an instruction to promptly report the death of the insured. The notice concluded thus:
“Pay nothing to any representative of the company for preparation of claim papers. Deliver the policy only to the company’s representative. The company is glad to pay and there is no necessity for help or alleged influence in collecting.
“It is not necessary to employ an attorney or any .other person to collect the insurance under, this policy, or to secure any of the benefits it provides.”
On July 24, 1928, the insured borrowed $80 on this policy. It was paid off on March .7, 1934, by borrowing a larger-sum sufficient to pay the principal debt and the semiannual premium, and $25 -in cash .which the company paid by its check. A third loan was effected on the policy, the proceeds of which were applied to pay off the second loan,' the semiannual premium, and semiannual premiums due on certain policies of insurance on the lives of two children of the insured and her husband. A fourth loan was procured on the policy on August 15, 1935, which canceled the third loan and paid the semiannual premium. A fifth and last loan was effected on February 5, 1936, which extinguished the fourth loan and paid the semiannual premium which had been overdue since December 2, 1935.
The next semiannual premium was due on June 2, 1936, but was not paid. At that time the entire cash surrender or loan value of the policy had been exhausted except a margin of eighty-five cents. On October 15, 1936, defendant sent to the insured its cancellation notice and with it a check for $5.15, which represented the remaining cash-surrender valué of the' policy and $4.30 which was a dividend on the policy due June 2, 1936. That $5.15 check was not cashed.
The insured died on December 26, 1937.
A demand for payment of the policy was rejected and this action was begun. Plaintiff pleaded certain material -facts and alleged the insured obtained the insurance policy through. John Yuratovich, agent of the defendant, and that the insured and this plaintiff relied on him to advise them of their rights thereunder; and that for thirty-six months prior to the death of the insured she was totally incapacitated; that Yuratovich who collected the semiannual premiums knew of such incapacity but did not properly advise the insured or the plaintiff of the privilege accorded by th.e policy which was that after it had been in force for a year, upon due proof received by the company that the insured had become wholly and permanently disabled so that she could not perform any work for compensation or profit, defendant would waive further payment of premiums. A condition of such privilege was that “if the insured shall fail to furnish such proof, ... all premiums thereafter falling due must be paid in conformity with the conditions of this policy.”
Plaintiff’s petition further alleged—
“It was the duty of said agent to advise plaintiff and his then wife, but that said agent purposely and on behalf of his employer the defendant herein concealed said knowledge from plaintiff and his wife in order that he could exhaust the cash value of said policy before plaintiff’s wife died to the profit of said agent and insurance company, defendant herein; that because Helen Bozich and this plaintiff relied on said agent of defendant to advise them of their just rights under said policy in accordance with the written representations on the back of said policy heretofore set out herein, and said agent did advise them what to do the above loans were under said agent’s advice and direction made for payment of premiums unnecessarily and to the detriment of plaintiff and his deceased wife Helen Bozich; ...”
Defendant’s answer contained a general denial, a specific denial that plaintiff or the insured had a right to rely on any agent of defendant to advise them of their rights under the policy, and a specific denial that any recital on the back of the policy under the caption “Notice to Policyholder—Please Read Your Policy Promptly Upon Its Receipt” was any part of the contract or created any rights in plaintiff or the insured.
The answer then pleaded the various loans as summarized above, and that since its check to the insured for $5.15 for the 85 cents balance of the cash-surrender value and for the June, 1936, dividend of $4.30 had not been cashed, it issued paid-up insurance thereon as of June 2, 1936, for what the sum would purchase, to wit, $10, according to a specific provision of the policy (par. 5, subpar. 3) summarized above.
The cause was tried before an advisory jury which returned answers to 25 special questions, some of which read:
“1. Was Helen Bozich totally and permanently disabled prior to her death? A. Yes.
“3. . . . state whether or not the defendant had notice or knowledge of such disability? A. Yes.
“4. . . . state how, when and by whom such notice or knowledge was acquired? A. By observation 36 months prior to death by agent.
“5. Did Helen Bozich or the plaintiff rely upon the defendant to ■ advise them of their rights under the policy? A. Yes.
“6. . . . state whether the defendant had notice of such reliance? A. Yes.
“7. . . . state how, when and by whom such notice was acquired? A. Verbally when policy was delivered June, 1922, by John Yuratovich.
“10. In what matters and to what extent was John-Yuratovich authorized to act for and represent the defendant? A. All matters pertaining to terms of policy.
“12. Did Helen Bozich or her husband, the plaintiff, receive the check for $25 introduced in evidence as defendant’s exhibit 2? A. (First)' Doubtful. (Second) No.
“16. Was it the policy of the defendant insurance company, after the issuance of the policy in question and until the death of Helen Bozich, to look after the health of its policyholders, through its agents, such as Yuratovich? A. Yes.
“18. Did Helen Bozich know of the provisions of the policy referred to therein as No. 10, relating to waiver of premiums by the insurance company, in the event of total and permanent disability? A. No.
“23. Did defendant’s agent, Yuratovich, do anything by word or act to conceal from the said Helen Bozich the provision of the policy referred to as clause No. 10 relating to waiver of premium? A. Did not advise.
“26. Was it the duty of said Yuratovich as the defendant’s agent to report the sickness or disability of said Helen Bozich, if any, observed or which he was informed of, to the defendant insurance company? A. Yes.”
The trial court approved almost all of these findings, including No. 12, and likewise made a number of its own, some of which read:
“3. That on the back of said policy the defendant had in printing the following:
Notice to Policyholder
[See contents summarized above]
“That the insured and the plaintiff knew of and relied on said provisions on the back of said policy and they relied on the insurance company, the defendant herein, to provide proper advice on how to secure the benefits of said policy; that the defendant insurance company by its agent John Yuratovich did not properly so advise the insured .and the plaintiff. That it was the duty of the defendant and its agent under instructions from defendant insurance company to advise the insured and plaintiff properly in regard to the benefits of said policy; that the said defendant by its agent wrongfully failed to advise the insured and plaintiff of clause 10 in said policy and have them make due proof to the defendant insurance company of the incapacity of the insured to work for wages or profit whereas the premiums would be by the defendant waived and the premiums would be considered as though paid while such incapacity continued, but said defendant by its said agent John Yuratovich wrongfully advised the insured and plaintiff to make loans on said policy to pay premiums thereon attempting to exhaust the cash value thereof of said policy before the insured’s death.
“4. . . . The defendant has accounted for proceeds five loans made to Helen Bozich on security of policy as alleged in answer except that Helen Bozich did not receive and cash check for $25 designated as defendant’s exhibit ‘2’ which was part of loan dated 3/9/34.
“8. That insured was totally disabled from doing any work for wages or profit under clause 10 of said policy for a period of 36 months prior to her death, and the defendant by the said John Yuratovich knew of this fact; that it was one of the assigned duties of John Yuratovich as agent of defendant insurance company to observe and inquire and report to the defendant any health disability of the insured; that the said John Yuratovich as agent of defendant did observe and he knew of the disability of the insured from performing any work for wages or profit during the 36 months prior to insured’s death. That the defendant by its said agent John Yuratovich wrongfully concealed from the insured the benefits of clause 10 of said policy and had loans made by insured on said policy when the defendant should have had the insured make due proof of the disability of the insured from working for wages or profit whereby no premiums would need to be collected for 36 months prior to insured’s death; that the defendant wrongfully had loans executed by insured to pay premiums 18 out of the last 36 months of insured’s life.”
In its conclusions of law the trial court held that defendant was estopped from claiming that the policy was canceled for nonpayment of premiums, and that defendant was entitled to the full amount of the face of the policy, plus the $5.15 defendant had invested in $10’s worth of paid-up insurance, likewise $43.32 for premiums collected during the first 18 months of insured’s incapacity, also “$25 cash defendant never paid plaintiff by check as found by the jury and the court;” likewise $165.70 interest on unpaid amount due plaintiff, totaling $1,239.17. The trial court allowed defendant a credit of $201.35, being the amount of the fifth and last policy loan, and entered final judgment for plaintiff in the sum of $1,037.82 and for costs.
The usual post-trial motions were filed and overruled, and judgment was entered for plaintiff. Defendant appeals, urging various errors which will be considered in sequence.
First, we take note of a suggestion by appellee that this appeal which was perfected on December 24, 1941, was not filed in time to entitle defendant to a review of the trial court’s rulings on its de murrer to plaintiff’s evidence, or the trial court’s order sustaining plaintiff’s motion to adopt and approve the jury’s special findings. On February 24, 1941, the trial court sustained in minor part and overruled in major part a motion by defendant to set aside the advisory. jury’s answers to special questions, and on that date approved most of the answers. At the outset of the trial defendant had requested the court to make findings of fact and conclusions of law and these were not made until several months later. Out of precaution defendant filed a motion for a new trial on February 27, 1941. This motion was not ruled on, but on March 15, the court sustained a motion by plaintiff for judgment on the jury’s special findings which the trial court had approved. But no money judgment was then entered, nor had the trial court yet made its own findings of fact and conclusions ■ of law. Again out of caution, on March 18 defendant filed a motion to set aside the judgment of March 15 approving most of the jury’s special findings. The trial court made its own findings of fact and conclusions of law on November 29, 1941. Within three days thereafter defendant filed a motion for a new trial on all the statutory grounds, also a motion to set aside the trial court’s findings of fact and conclusions of law. On December 13, these motions were overruled and judgment was entered for plaintiff, and on December 24 notice of appeal was duly served and filed. It is therefore clear that no infirmity inheres in appellant’s right to an all-inclusive review, under the latest pertinent provision of the civil code. (G. S. 1941 Supp. 60-3314a; McElroy v. Ball, 149 Kan. 284, 87 P. 2d 608; Miller v. Whistler, 153 Kan. 329, 331, 110 P. 2d 744.)
Defendant first contends that the evidence did not support a finding that the insured was totally and permanently disabled within the meaning of paragraph 10 of the policy so as to excuse her from making the regular semiannual payments on her policy. While there was no medical testimony touching the woman’s ailings and indisposition prior to the last six months of her life, and some of plaintiff’s witnesses testified that she had been ailing and complaining during the last ten years of her life, and there was evidence that she had worked in a packing house for wages as late as November, 1934, some three years before she died, yet whatever inconsistency may have inhered in the evidence, and notwithstanding the want of medical testimony to show that the insured was wholly and permanently disabled for the last three years of her life, we think the evidence and the credence to be given it were matters within the competence of the triers of fact and not to be disturbed by appellate review.
A more important question is next presented in the finding that appellant’s agent, John Yuratovich, knew that the insured was totally and permanently disabled during the last three years of her life so as to excuse her from making the semiannual payments on her policy. Indeed, the findings of the advisory jury and the trial court are that it was part of his duty to know her condition and to report it to the defendant company.
Defendant contends there was no evidence that Yuratovich did know of her indisposition, and a painstaking reading and rereading of the record fails to reveal any such testimony. Counsel for appellee are very emphatic that Yuratovich did know it, and he prints—but not accurately—lengthy excerpts of Yuratovich’s testimony on the assumption that it will support the finding. Thus his counter abstract ostensibly quotes the transcript thus:
Plaintiff testifying—
“Q. Did he [Yuratovich] know that your wife was in the condition that she was? A. Yes.”
But the counter abstract omits what immediately follows. It reads:
“[Counsel for Defendant]: • We object to that as calling for a conclusion of the witness.
“The Court: Sustained. Stricken out.” (Tr., p. 24.)
Yuratovich testified that he did not know that Mrs. Bozieh was ailing at the time he last called on her, about June 2, 1936, and at none of the times he went to her home did he find her in bed; she always opened the door for him; he never observed that her legs were swollen or heard her cough or observed that her face was yellow, or complain about being sick; and when he went to her house he always found her fully clothed.
Of course it was the privilege of the triers of fact to disbelieve Yuratovich’s testimony, but they had no right to adopt as true the very opposite of his testimony, on no competent evidence whatsoever.
It is gravely contended, however, that it was Yuratovich’s duty to know of the physical disability of Mrs. Bozieh and to report it to the company. The jury so- found (special finding No. 26), and the trial court itself in its special finding No. 8 found “it was one of the assigned duties of John Yuratovich as agent of the defendant insurance company to observe and inquire and report to the defendant any health disability of the insured.” But there was no evidence to support either the jury’s finding No. 26 or the quoted excerpt from the trial court’s finding No. 8. The only evidence as to the scope of Yuratovich’s authority was that he was a soliciting and collecting agent, and the authority of such an agent never goes further than that conferred on him in writing by his company (G. S. 1935, 40-239), nor beyond the scope of the license issued to him by the commissioner of insurance. (G. S. 1935, 40-240; West v. Metropolitan Life Ins. Co., 144 Kan. 444, 449, 61 P. 2d 918; Hudson v. Travelers Ins. Co., 149 Kan. 528, 532, 88 P. 2d 1096; Nixon v. Manhattan Mutual Life Ins. Co., 153 Kan. 39, 109 P. 2d 150.)
The trial court attached much significance to the statements on the back of the policy under the caption “Notice to Policyholder,” particularly the one which said:
“It is not necessary to employ an attorney or any other person to collect the insurance under .this policy, or to secure any of the benefits it provides.”
This admonition or advice was not a part of the insurance contract, but even if so, it should not be distorted into a'Construction that the soliciting and collection agent was assigned to the duty of keeping watch and ward over the physical capacity of the policyholder to discover that she had “become wholly and permanently disabled by bodily injury or disease” so that she had become “permanently, continuously and wholly prevented thereby from performing any work for compensation or profit,” and thus entitle her to a waiver of payment of the premiums. Nor was this recital in the notice open to a construction that the insurance company itself would supply the insured with an attorney to collect the benefits provided by the policy. In Hovhanesian v. New York Life Ins. Co., 310 Mass. 626, 39 N. E. 2d 423, the action was to recover for disability benefits on an insurance policy. On the back of the policy was the following:
“Notice: It is not necessary for the insured or the beneficiary to employ the agency of any person, firm or corporation, in collecting the insurance under this policy, or in receiving any of its benefits. Time and expense will be saved by writing direct to the home office, 346 and 348 Broadway, New York City.” (p. 427.)
Commenting on the significance of that notice, the court said:
“The plaintiff contends, as we understand him, that this provision cast upon the defendant the burden of preserving the plaintiff’s rights for him and in effect amounted to a waiver of ‘due proof.’ We cannot accept this proposition. The requirement of ‘due proof’ is an important condition included in the operative part of the policy. It could not have been intended that it should be canceled or neutralized by a ‘notice’ like this on the back.” (p. 427.)
We hold that the quoted language on the back of the policy sued on means exactly what it says, and no more. And it was the company itself that said it, not its soliciting and collecting agent, John Yuratovich. If the insured had complied with the terms of paragraph 10, by furnishing due proof that she was wholly and permanently disabled, and the company had repudiated its admonition that she needed no attorney to secure any of the. benefits of the policy she would have had something tangible to complain of. (Bass v. Annuity Association, 96 Kan. 205, 150 Pac. 588.) But she furnished no such proof, nor does plaintiff allege that she did. He relies on the inability of the insured to read the English language to excuse her from furnishing such proofs. No insurance company could survive and do business if its reasonable requirements to entitle the insured to the benefits of its contract of insurance are to be judicially brushed aside and disregarded on the ground that the ignorance of the insured prevented her from conforming to those requirements. In Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 430, 7 P. 2d 65, this subject is treated at much length and the authorities carefully examined, and the opinion of the court, written by Mr. Justice Sloan, concludes thus:
“The contract is made for the benefit of the insured. On the one hand the company obligates itself in the event of total disability to carry the insurance without charge to the insured, and on the other hand the insured obligates himself to furnish, while the policy is in force, proof of such disability. The contract is neither unreasonable nor harsh.
“Touching the contention that insanity should excuse the furnishing of proof, it will be noted that the law is settled beyond any question that insanity does not excuse the payment of premium, and if it does not excuse the payment 'of premium there is no reason why it' should excuse the failure to furnish proof of disability’.” (p. 434.)
See, also, Bowling v. Illinois Bankers Life Ass’n, 141 Kan. 377, 41 P. 2d 1012; and Bott v. Equitable Life Assur. Society, 147 Kan. 671, 78 P. 2d 860, and citations.
In view,of the foregoing the other objections to the special findings and judgment need no discussion; but in reference to the jury’s and the trial court’s finding that defendant’s check for $25 had not been cashed by the payee notwithstanding it passed through the regular channels of commerce and bore plaintiff’s endorsement, with the legal consequences attaching thereto, see negotiable-instruments act, G. S. 1935, 52-401 et seq. and annotations; also, State v. Ferris, 148 Kan. 663, 84 P. 2d 949, and Peavy v. Hovey, 16 Neb. 416, 20 N. W. 272.
Reversed with instructions to enter judgment for defendant.
Harvey and Smith, JJ., dissent.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for wrongful death. The deceased person was Mary Cruse, who was survived by her husband and two adult daughters. The husband was appointed as administrator of.his wife’s estate and brought the action in his representative capacity.
The petition alleged that on October 27, 1940, Mary Cruse was riding in an automobile driven by her husband on a country road west of Newton, and in a collision with an automobile negligently operated by the defendant, she sustained injuries from which she died. The answer of the defendant, among other things, alleged the collision occurred solely as the result of negligence of the husband, who was then and there acting for his wife, and through the negligence of Mary Cruse. Plaintiff’s reply properly denied allegations of agency.
Trial was had by a jury. Defendant’s demurrer to plaintiff’s evidence was overruled, and the trial proceeded. The jury answered special questions and returned a verdict in favor of plaintiff. Defendant’s motions for judgment notwithstanding the verdict and for a directed verdict were denied and from those several rulings defendant appeals. Plaintiff’s motion to set aside two answers to special questions was sustained in substance. His motion for .a new trial was denied, and from the latter ruling he has appealed.
We shall consider first the defendant’s contention the trial court erred in not sustaining his demurrer to plaintiff’s evidence. The gist of this contention is that the plaintiff, in his individual capacity, and the deceased were each guilty of contributory negligence, and we review the testimony only as it pertains to that contention.
We first summarize the evidence with respect to the site of the accident, which occurred at an intersection of a county road Tuning north and south and a township road running east and west. At the intersection there were no stop signs on either road. The county roadway was about twenty-eight feet wide and the township road way was slightly narrower. To avoid confusion with respect to distances we shall refer to the intersection as being the portion of both roads bounded by the outside lines thereof. From a contour map it appears the county road had a gradual rise of three and one-half feet in a distance of five hundred feet north from the intersection. At some considerable distance east of the intersection the township road was level. It then sloped downward to a bridge seventy-five feet long, the west end of which was about one hundred sixty-five feet east of the intersection. From the bridge to the intersection the road had a slope upward of ten feet. Westward from the east side of the intersection the road slopes upward one foot in the next seventy-five feet. A photograph taken about three hundred sixty feet east of the intersection and looking toward it shows there was a danger sign a short distance east of the bridge. From the contour map and other testimony, it appeared that a person seated in a motorcar traveling west on the township road could see considerable distances to the north on the county road until the car went on the bridge, and then for some distance vision to the north would be obstructed by rise of intervening lands and growth thereon, but that at a point fifty feet east of the east line of the intersection there was a clear view to the north of over three hundred feet, the range of vision northward increasing as the intersection was approached.
Plaintiff was the only witness testifying in his behalf with respect to the accident. He stated that on Sunday afternoon, October 27, 1940, he and his wife went for a ride, that he was driving the car and they were proceeding westwardly on the township road. He drove down the hill toward the bridge, but did not see the danger sign. When crossing the bridge he could not see any distance north or south. After crossing the bridge he went up the incline, and when about twenty-five to thirty feet east of the intersection, he was traveling from ten to fifteen miles per hour. At that point he looked to the north and saw defendant’s car between two hundred fifty and three hundred feet to the north -and approaching him, and thought it had a speed of thirty to thirty-five miles per hour. He looked south and s$w no one coming. He stated the intersection was rather a blind corner and that at the rate he was driving he could stop in ten feet. After he saw the defendant’s car he did not look again to the north but proceeded west and into the intersection, without deviating or putting on his brakes. The next time he saw the defendant’s car was when he was entering the intersection when he heard brakes screeching and he looked up and the car “was right on top of me” and that he then stepped on his accelerator and tried to speed up. Each car was on the right side of its highway. Defendant’s car hit his car on the right side just behind the front wheel.
Appellant makes no contention plaintiff’s evidence failed to show he was guilty of negligence. His demurrer, however, does raise at least four questions:
1. Was the plaintiff husband, in driving the car in which he and his wife were-riding, guilty of contributory negligence?
2. If so, was that negligence imputable to his wife?
3. If not, was she personally guilty of contributory negligence, and—
4. If the husband was guilty of contributory negligence not imputable to his wife, and she was not guilty of contributory negligence, what was the effect on his being entitled to recover as a beneficiary of her estate?
We shall consider these in their order.
Contributory negligence has been defined as conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant in bringing about the plaintiff’s harm (Restatement, Torts, sec. 463) and that it is conduct which falls short of the standard to which the reasonable man should conform in order to protect himself from harm (id., sec. 466). And in the comment respecting the last section it is'said that it is,immaterial that the defendant’s conduct falls farther below the standard of a reasonable man than does that of the plaintiff.
It has been repeatedly held that when the facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of the fact, otherwise it is one of law. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; and cases cited.)
While the general rule is that the burden of establishing the plaintiff’s contributory negligence rests upon the defendant (Restatement, Torts, sec. 477) if plaintiff’s own evidence shows him guilty of negligence which precludes his recovery, the defendant may take advantage by demurrer. (Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343.)
In support of the trial court’s ruling appellee directs our attention to the testimony showing that Mr. Cruse, when about thirty feet from the intersection, looked to the north and saw defendant’s car about two hundred fifty to three hundred feet away, and to our statutory provision that a driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection (G. S. 1941 Supp. 8-550, a) and contends that Cruse had a right to assume the defendant would obey the law and either stop or so control his car that plaintiff could safely pass. In support of that contention our attention is direoted to Keir v. Trager, supra, and Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552. In both of those cases, the defendants had paid no attention to and had run past stop' signs. In the case at bar there were no stop signs. Although there was a danger sign on the township road, Cruse did not see it. He did know that he was driving up a rather steep grade to a.corner where he could not see well until he got near the intersection. When he was about thirty feet from the intersection and possibly fifty feet from where cars on the proper sides of the roadways would meet, he looked to the north and saw defendant’s car two hundred fifty to three hundred feet away, and then without looking further and without increasing or decreasing his speed, he went straight ahead oblivious to what might happen. He never looked to the north a second time until he heard the sound of the brakes on defendant’s car, which was then right on top of him. Had he looked to the north a second time he could have seen that he had miscalculated either defendant’s speed or his distance away; that defendant was about to enter the intersection, and he could have stopped, speeded up or turned and averted the collision. The factual situation in Marshall v. Boucher, 152 Kan. 697, 107 P. 2d 698, to which appellee directs our attention distinguishes it from the case at bar. The situation disclosed in the case at bar constituted a clearer case of plaintiff’s contributory negligence than that discussed in Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117, where the wife riding with her husband sought to recover, and where it was held she also was guilty of contributory negligence. Some of the evidence in that case is set out in the opinion. It will not be repeated here. Reference is made to the opinion.
We think that men of reasonáble minds would agree that the conduct of Mr. Cruse in operating his car was below the standard to which he should have conformed for his own and his wife’s safety.
Was the contributory negligence of the husband imputable to his wife? We do not think it can so be held as a matter of law. The sole affirmative evidence bearing on this phase of the matter is that she was taking a ride with her husband, and that immediately prior to the accident she had made no statements to him. Under the reasoning and holding in Link v. Miller, 133 Kan. 469, 300 Pac. 1105, the question could not be decided as one of law.
Did the plaintiff’s evidence disclose that the deceased wife was guilty of contributory negligence as a matter of law? We are asked to assume that she saw and knew or was in a position to see and know what her husband did. Possibly so. There is no evidence as to what she may have said or done, further than that immediately before the collision she made no statements to him. If we assume she saw and knew all that her husband did, we may also assume that she would take precautions for her own safety, and that she did not do more than the evidence shows because she believed he would stop his car or otherwise so drive it as to avoid harm. Ferguson v. Lang, supra, does not support appellant’s contention. There the wife’s own testimony established her contributory negligence. Bearing in mind the rule as to burden of proof, it may not be said plaintiff’s evidence showed Mrs. Cruse was guilty of contributory negligence.
The next question for consideration is what is the effect on the action for wrongful death where the husband is guilty of contributory negligence but the deceased wife is not. Generally speaking, in an action for wrongful death, recovery is limited to pecuniary loss by the statutory beneficiaries (Pattrick v. Riggs, 148 Kan. 741, 742, 84 P. 2d 840). In the case at bar there was evidence as to the loss sustained by the husband but none whatever as to the daughters. Appellant contends that if the husband was guilty of contributory negligence neither he nor any of the next of kin may inherit, and in support he cites Turner v. Railway Co., 106 Kan. 591, 189 Pac. 376. The case is not in point. There the deceased was held to be guilty of contributory negligence. Generally in such case, under a wrongful-death statute similar to ours, the husband may not recover, and any amount he would otherwise have received is deductible from the amount recoverable by the survivors as a group, the rest being distributed among the survivors as though the husband did not exist (Restatement, Torts, sec. 493). However, we need not consider at length the question whether the deceased was barred from recovery by the contributory negligence of her husband. Here the matter is controlled by what occurred at the trial. The court instructed the jury, in substance, that if the jury found the husband guilty of contributory negligence, he was individually bound and his loss should not be considered, although it did not affect his right as administrator to recover for the benefit of the two adult children, and if the jury so found then the verdict must be limited to nominal damages of one dollar. From the abstract and counter abstract it appears that neither party objected to the instruction. It became the law of the case (Sowers v. Wells, 154 Kan. 134, 114 P. 2d 828) and the court should have sustained appellant’s motion for a directed verdict of one dollar. In view of our conclusions, it is not necessary that we notice appellant’s contentions with respect to its motion for judgment non obstante veredicto.
We come now to the cross-appeal. The principal complaint is that the trial court erred in not allowing plaintiff a new trial on the question of damages only. We need not consider whether the evidence compelled a larger verdict insofar as the husband is concerned because, as is shown above, he is not entitled to recover anything. There was no evidence the two daughters sustained any pecuniary loss.
Complaint is also made concerning statements of counsel for defendant in arguing the cause. It is conceded no objection was interposed when the statements were made. Waiving any discussion that the complaint comes too late, it appears the only verdict that could have been rendered was for one dollar, and comment made in argument, good or bad, discx'eet or otherwise, could not affect the result.
The judgment of the lower court is reversed and set aside, and the cause remanded with instructions to render judgment in favor of plaintiff and against defendant for one dollar and costs.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, J.:
Appellee has filed a motion for rehearing in which questions formerly considered by the court are reargued. This motion has been considered by the court and is denied.
Appellee also moved for an order of the court giving him ninety days’ time after the mandate goes down in which to move his warehouse from appellant’s property. In this connection he speculates on the exact distance he will have to move the warehouse in order to have it off of property claimed by appellant and he “can still use the building in its same proximate position but not be on any land as claimed by the railroad.” He complains, also, that since our opinion was handed down the appellant has asked him to pay rent. In answer to this part of the motion appellant contends appellee is trifling with the court’s opinion and is seeking to embarrass appellant, and points out that at no time did it agree to waive rents. We think this criticism is well taken. The lease gives appellant a lien upon the warehouse for rents, and for other items in the event they have accrued, and there is nothing in the record or in the presenta tion of the case to this court which indicates the appellant would waive those rights.
In order to clarify the matter, and with the hope of ending any controversy, the closing portion of the opinion as previously filed is modified to this extent: Appellee is given ninety days from the filing of this opinion in which to move the warehouse; that if moved it must be moved off of any property in which the appellant' has or claims to have any right, title or interest, and as a condition precedent to his right to move it he shall pay to the appellant the rentals provided for by the lease since March 10,1936, and all other charges, if any there be, which by the terms of the lease appellant would have a right to charge as against appellee.
The mandate will go down at once.
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The opinion of the court was delivered by
Thiele, J.;
This appeal involves the validity of parts of an ordinance of the city of Atchison.
The record discloses that in 1938 the city duly enacted an ordinance regulating the production and sale of milk which, among other things, made provisions for certain permits and for tuberculin tests of cattle, more particularly mentioned later. The plaintiffs are farmers living in Atchison county who are engaged in producing milk which is sold to distributors in the city of Atchison. In 1939 the plaintiffs complied with the provisions of the ordinance of which complaint is made, but did not do so in 1940 and 1941, and they are threatened with prosecution on that account. They instituted an action for a declaratory judgment to determine the validity of those parts of the ordinance. The city answered. The cause was submitted on a stipulation of facts, and the trial court upheld validity of the attacked portions of the ordinance. The plaintiffs appeal.
Two questions are presented:
(1) Does the city have authority to enact an ordinance which charges producers a permit or license fee? and—
(2) Does the ordinance require the producer to provide at his own expense a certificate that his cows have been tuberculin tested, and if so, does the city have authority to delegate its inspectional powers to third persons?
Without going into detail it may be said the ordinance deals comprehensively with the production and sale of milk within the city. Twenty-one words and terms used in the ordinance are defined, provisions .are made for the permits hereafter specifically mentioned, also for labeling and placarding the containers in which the product is sold, for periodic inspection of dairy farms and milk plants, for the examination of the milk according to specified standards, for grading of the milk, for testing of cows, more specifically referred to hereafter, and generally for certain standards as to places of production, sanitary conditions of plants and equipment used, methods and conditions of bottling, etc.
Referring to the particular portions of' sections under attack, we note that section 3 of the ordinance makes it unlawful for any person who does not possess a permit from the health officer to bring into the city or offer for sale or to sell any milk product, provision being made for revocation of such permit under conditions not here material. It is then provided:
“The license fees which shall be required of and paid by all persons as herein above provided for shall be as follows:
“(a) Each milk producer producing milk which is sold or distributed or intended for sale or distribution within the corporate limits of the city of Atchison, Kansas, shall pay an annual permit fee of $2 for two cows or less and 50$ per year for each additional cow. The payment of this fee shall include the right to distribute milk or milk products.”
Appellants direct our attention to G. S. .1935, 12-1617, which reads:
“That the powers of the cities of the first, second and third classes within this state to impose license or occupation taxes upon peddlers and venders shall not be construed so as to apply to, or create the power to impose license taxes or occupation taxes upon producers and growers, or their agents or employees engaged in the sale of farm, or garden products, or fruits grown within this state.”
It is contended that under it the city is forbidden to impose any license or occupation' tax. Appellants cite decisions from other jurisdictions that milk is a farm product, and for our purposes that will be conceded. We think it is evident from the whole ordinance that whatever the permit or license fee imposed by the ordinance may be, it is not an occupation tax. The ordinance did not fix any fee as a means of producing revenue under any power of taxation. See Duff v. Garden City, 122 Kan. 390, 251 Pac. 1091, and McKay v. City of Wichita, 135 Kan. 678, 11 P. 2d 733. The question remains whether the fee imposed was a license fee within the purview of the above statute.
The sale of milk, cream and dairy products has been the subject of regulation by the state. See G. S. 1935, ch. 65, art. 7, and amendments in the 1941 supplement. The above statutes do not confer any specific powers upon cities to legislate with respect thereto. It is to be noted, however, that power has been granted to cities of the first class to make regulations to secure the public health (G. S. 1935, 13-436), to prevent the introduction and spread of contagion (G. S. 1935, 13-415), and for such purposes to enact ordinances not repugnant to the laws of the state (G. S. 1935, 13-401). It may here be remarked there is no contention that the regulatory features of the ordinance are repugnant to the statute noted. Not only does the above statute recognize, but it is generally known, that it is necessary to the preservation of the public health that sources of food supply and especially milk be kept puré and of recognized quality. In connection with the performance of that duty the city has adopted regulations, the carrying out of which entails expense. It is rather clear from the entire ordinance that such fees as are charged are to defray that expense. Here there is no claim made that the fee is unreasonable, or that it is a device for revenue and not to meet expenses of inspection. It is also clear from the ordinance the fee is not fixed on the right of the producer to peddle or vend his milk; it is a measure calculated only to meet expense of determining that the product he sells complies with specified conditions to insure its fitness for human consumption. In our judgment the statute relied on by appellants was never intended to prevent enforcement of health regulations. Certainly one so regardless of consequences that he would peddle in the city meat from diseased animals raised by him, or decayed vegetables and fruits from his farm, could not successfully resist the efforts of the city to stop him by reliance on the statute exempting him from payment of occupation and license taxes. Other courts considering similar contentions have reached like conclusions. {City of Norfolk v. Flynn, 101 Va. 473, 44 S. E. 717, 99 Am. St. Rep. 918, 62 L. R. A. 771; Korth v. Portland, 123 Ore. 180, 261 Pac. 895, 58 A. L. R. 665; Walton v. City of Toledo, 3 Ohio Cir. Ct. Rep., n. s., 295, 13-23 Ohio C. C. 547 [affirmed without opinion, 69 Ohio St. 548, 70 N. E. 1134]; City of Quincy v. Burgdorf, 235 Ill. App. 560; Carpenter v. City of Little Rock, 101 Ark. 238,142 S. W. 162.) In our judgment the section of the ordinance herein referred to is not to be stricken down on account of the grounds asserted.
Appellants also complain of item 1-r of section 7 of the ordinance, which need not be fully set forth. Under that item it is required that before milk is sold the herd shall, at least once every twelve months, be given a tuberculin test by a licensed veterinarian approved by the state livestock sanitary commission. The complaint is divided. It is contended that the ordinance does not specifically provide that the cost of making the test shall be borne by the owner of the herd, and second, that the particular item of the ordinance delegates a delegated power contrary to law.
Although there had been legislation on the subject prior thereto, in 1911 the legislature passed a rather comprehensive law concerning the protection of domestic animals, the same being Laws 1911, chapter 312. It has since been amended in certain particulars and now appears as G. S. 1935, 47-610 to 47-635, inclusive. Under this act provision is made for protection of domestic animals from contagious and infectious diseases, and, among other things, the livestock sanitary commissioner shall, whenever he deems it necessary, formulate the rules under which the tuberculin test for tuberculosis in domestic animals shall be applied, and that no person other than one indicated for that purpose by the livestock sanitary commissioner shall inject any tuberculin into any animal in this state (47-631). The twenty-fourth section of the act as amended (47-633) provides that the governing body of any city shall have the power by ordinance to require the owner of any dairy herd offering for sale any milk within the city to first subject the cow from which the milk is derived to examination and test for tuberculosis, under the direction of and in accordance with the rules prescribed by the livestock sanitary commissioner.
It appears the city had power to require the herd be subjected to the tuberculin test and that compliance with the requirement is a condition precedent to the right to sell milk within the city. Possibly the city could have provided the tests could be made at its expense, but it did not do so. Its mere silence in not providing the cost should be paid by the applicant does not make that part of the ordinance bad. A fair interpretation of the ordinance is that the applicant must meet the conditions precedent at his own expense.
We cannot agree with appellants that the city has attempted to delegate a delegated power in providing that the tuberculin testing shall be by a licensed veterinarian approved by the livestock sanitary commission. It would appear from the statute above noted that such a person would be the only person authorized to make the test. This provision of the ordinance is in conformity with and not repugnant to the state law, and is a proper exercise of the city’s legislative power under G. S. 1935, 13-401 et seq.
The present situation is very different from that considered in Trimble v. City of Topeka, 147 Kan. 111, 75 P. 2d 241, which is relied on by the appellants. There it was held the ordinance attacked was repugnant to and inconsistent with the state law.
The judgment of the trial court upholding validity of section 3, subdivision (a) and of section 7, item 1-r, ÍS' affirmed.
Hoch, J., not participating.
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Per Curiam:
The State Board of Law Examiners caused an accusation in disbarment to be filed against E. 0. Ellis, based upon five instances of alleged misconduct. Mr. Ellis filed his answer, and the state board moved for judgment on the pleadings. That motion has been orally presented to the court and now comes on for consideration and decision.
The first charge of misconduct is based on an alleged misappropriation of moneys and a restitution made in 1927. It would seem that possibly this charge was made as a matter of inducement and not as the basis for judgment, and so considered, it needs no further comment. If considered as a charge, however, we may ignore accused’s explanation. The matter is old and stale, and no disbarment should be predicated thereon.
Very briefly stated, the remaining four charges are based on matters arising out of four divorce suits, and are as follows: (1) Permitting a client to testify to a fact known by accused to be untrue without advising the trial court of the truth; (2) Instituting an action against a defendant, known by the accused to be insane, without disclosure of defendant’s incompetency to the trial court; (3) and (4) Permitting clients to make poverty affidavits when accused knew the facts stated were not true.
The accused’s answer is long and sets forth in detail his version of and defense to each of the charges against him. The answer may be characterized as an effort by the accused to exculpate himself rather than a denial that he did those things with which he is charged. We note also that accused sets forth certain matters tending to show bad feeling between him and the judge of the trial court where the several divorce actions were filed.
There can be no question but that accused’s failure to disavow his client’s testimony, known to him to be false, his concealment of the insanity of the defendant in another case, and his action in permitting false poverty affidavits in the two other cases, “merits stern and just condemnation.” See Canons of Professional Ethics, 32 and 41, 144 Kan. pp. xiv, xvi. The accused’s own explanation shows he should be censured for his conduct.
The question for consideration is to what extent should the motion for judgment be sustained. In addition to what has been said, it may be observed that the answer discloses accused was admitted to the bar in Neosho county in 1888, and that a document accompanying the answer discloses he is eighty-eight years of age. At the argument, in response to a question asked, accused stated he was that old. The court, upon consideration of the whole matter, has concluded the motion for judgment should be sustained only to the extent of reprimanding the accused for his unprofessional conduct, but that said motion should be otherwise overruled; and that the accusation shall be no further prosecuted but shall be dismissed, and it is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case. The commissioner heard the evidence and denied compensation. The trial court reviewed the evidence, heard the argument of counsel, and found “that any disability from which this claimant may be suffering is not the result of an accidental injury arising out of and in the course of his employment with this respondent, and award should be denied.” The claimant has appealed.
Upon a showing of claimant’s financial inability to defray the expenses of .the litigation this court waived its rule respecting deposit for costs and the printing of abstracts and briefs. His counsel, with commendable industry and diligence, has presented on his behalf a complete abstract of record and brief.
Before the commissioner and the trial court respondents contended that the claim for compensation was not made within the time required by statute (G. S. 1941 Supp. 44-520a). The trial court held in favor of claimant on that point, and since respondents have not appealed from that ruling we need give it no further attention.
Upon claimant’s appeal facts only are argued. They need not be set out at length, for there is nothing we .can do about the trial court’s decision. It is not contended there is no substantial evidence to support the finding of the trial court. The gist of the argument on behalf of appellant is that.there is evidence upon which a finding could have been made favorable to claimant, and that the court gave too much credence to other evidence.
- Under the statute relating to appeals to this court in compensation cases (see proviso in G. S'. 1935, 44-556), the appeal is limited to “questions of law.” This court has no authority to weigh conflicting evidence. That is the function of the trial .court. (See Earhart v. Wible Ice & Cold Storage Co., 150 Kan. 695, 698, 95 P. 2d 366; Williams v. Cities Service Gas Co., 151 Kan. 497, 503, 99 P. 2d 822; Johnson v. Voss, 152 Kan. 586, 589, 106 P. 2d 648; Miller v. K. S. Flint Rig Co., 155 Kan. 66, 122 P. 2d 734, and cases cited therein.)
The result is, there is no question of law presented for our determination, and the appeal must be dismissed. It is so ordered.
Hoch, J., not participating.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for injuries sustained in an automobile accident. At the trial, and. after she had introduced her evidence, plaintiff moved to dismiss as against the defendant Farm Mortgage Investment Company, the motion being allowed. Under the pleadings the defendant Elmer E. Scott Investments is one and the same as defendant Elmer E. Scott. Scott’s demurrer to plaintiff’s evidence was sustained. Plaintiff filed a motion for a new trial, alleging, inter alia, newly discovered evidence, but on the hearing none was produced and the motion was denied, and she appeals. It is noted that judgment was rendered against the defendant Oscar Dietrich, who 'was in default.
The trial court sustained the demurrer for the asserted reason the evidence did .not show the relation of master and servant between the defendants Scott and Dietrich, but rather showed that Dietrich was an independent contractor. The gist of the appeal is the correctness of that ruling, and our review of the evidence is limited generally to the evidence pertaining thereto. As a preliminary, it may be said that on the night of May 7, 1941, Dietrich was driving a truck loaded with posts belonging to Scott, and when he reached a place west of Watson, in Shawnee county, his truck became disabled. He left it parked on the highway without lights or warning signals and went for help, but before he returned the automobile driven by plaintiff’s husband, and in which plaintiff was riding, collided with the truck, and plaintiff-received severe injuries.
The evidence showed that Scott owned a farm about two miles south of Kanawaka in Douglas county and that he had been handling a farm about four miles west' of Topeka, owned by Ottawa University, on which Dietrich lived. W. C. Wehrle lived on a farm southwest of Wakarusa in Shawnee county and Harvey Bayless had cut some fence posts on the farm, on shares. Scott went to the Wehrle farm two or three times to see about buying the posts, and made a down payment for a certain quantity, telling Wehrle and Bayless he would haul them as soon as he could get a truck driver. On May 7, 1941, Scott went to- the Bayless home near Carbondale and said he had come after the posts, and Bayless and Scott went to the Wehrle farm and Dietrich was there. The deal for the posts was completed and Dietrich and Bay less loaded the posts. When the truck left the Wehrle farm Scott left in his car. The record as abstracted does not show that Scott in any manner directed the loading of the truck. • Dietrich’s testimony was that he hauled the posts for credit on his rent. Scott asked him to haul the posts and he met Scott at the Wehrle farm. He had just a few words with Scott, who told him to take the posts to his farm southwest of. Lawrence, and he started directly for the Watson road, stopping at Wakarusa to load up “a little feed to take down with me,” but he didn’t know whether the feed belonged to Scott or his tenant.
In its comments when ruling on the demurrer the trial court stated there was no doubt of the evidence being insufficient on the question of Scott’s control of Dietrich’s movements, but in discussing right of control, there was no evidence he told Dietrich he had to drive a certain route or the straightest route or any particular route from Wakarusa to the point of delivery; or that he had to reach his destination at any certain time. He told him only where to deliver the posts.
Appellant contends that because Scott arranged to have Dietrich at'the Wehrle place at a particular time, that Scott was present when the posts were loaded, that Dietrich stopped at Wakarusa to pick up the feed, the only inference is that Scott directed and controlled the loading, and further, that because Dietrich stopped at Wakarusa and then proceeded on the particular route he did, the inference must be that Scott told him to go that way. To support that contention appellant directs our attention to Baker v. Petroleum Co., 111 Kan. 555, 207 Pac. 789, and especially to language used in the middle of page 560, in considering an instruction to which objection had been made. The statement refers to the evidence in that case. Space prevents a detailed review of the facts of the case, but it appeared the defendant leased a truck by the day to be used in its operations, the driver reporting each morning at a certain point. Omitting all other testimony, it appears that one of defendant’s witnesses stated the operations of the truck were directed by the defendant’s boss. That decision is not controlling here, for in it there was evidence not only showing right of control of physical conduct, but that the control was- exercised. Another case to which appellant directs our attention is Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 723, 78 P. 2d 868, where after quoting from two of our decisions, it was said:
“The real test is the right or authority to interfere, direct, supervise or control, and not the actual interference or exercise of the control by an employer which determines whether one is a servant rather than an independent contractor.” (Citing authorities.)
There is no doubt the quotation states the law. See the later case of Houdek v. Gloyd, 152 Kan. 789, 107 P. 2d 751, where the Mendel case, supra, and many of our other cases are reviewed. In that case it was held :
“A master is a principal who employs another to perform service for him, and who controls or has the right to control the physical conduct of the other in the performance of such service, and the servant is the person so employed.
“An independent contractor is generally one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” (Syl. ¶¶ 2, 3.)
In Restatement, Agency, sec. 220, it is said:
“(1) A servant is a person employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other’s control or right to control.
“(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
“(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
“(f) the length of time for which the person is employed;
“(g) the method of payment, whether by the time or by the job;
“(h) whether or not the work is a part of the regular business of the employer; . '. .”
We shall not detail the comment made explaining the above quotations, but applying the tests there set forth to the evidence before us, it appears only that Dietrich furnished his own truck to perform the work; that it was the only work he was doing for Scott; that he was paid for the job and not by the hour; and that the work being performed was no part of the regular business of Scott. Stated in another way, there is no evidence that Dietrich was ever employed ■by Scott on any previous occasion—the evidence went no further than to show that Dietrich was employed to use his truck to haul some posts and feed to satisfy or partly satisfy a claim for rent. A fact is not proved by circumstances which are merely consistent with its existence (Redfield v. Chelsea Coal Co., 143 Kan. 480, 482, 54 P. 2d 975), and such facts as were proved did not warrant an inference that Scott had any right of control of Dietrich in his performance of the contract to haul the posts.
The ruling of the trial court on the demurrer was correct and it is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Thiele, J.:
This was an action on a promissory note, and from an adverse judgment the plaintiff appeals.
Under date of December 31, 1932, the defendant gave to the First National Bank in Ness City his note for $2,365. At a date not disclosed the bank was placed in charge of a conservator, but about February 1, 1934, it was placed in charge of a receiver, who on the following dates collected the following amounts; March 5, 1934, $5.97, September 21, 1935, $50, May 11, 1936, $611.03, and July 20, 1936, $525, the several payments being endorsed on the note. On August 26, 1937, the receiver sold and assigned the note and some other bank assets to the plaintiff, and at a later date an action on the note was commenced. The defendant filed an answer admitting execution of the note and that he had made the payments noted and alleging he was entitled to certain setoffs, the details of which are not now material. Upon trial a judgment was rendered in favor of the defendant, but upon a showing of newly discovered evidence, the plaintiff was given a new trial. Plaintiff filed an amended petition and defendant thereafter filed an answer which on motion to make definite and certain was amended, and as amended, admitted execution of the note and alleged it had been fully paid by the payment of about $1,000 to the conservator of the bank in March, 1933, the balance being paid on or about August, 1934.
At the trial both parties produced evidence and the jury returned a general verdict in favor of the defendant and answered five questions. The first, second and fourth questions and answers were that defendant paid the amounts of $611.03, $525 and $50, mentioned above. The third question and answer was that in March, 1933, defendant paid the bank or its conservator to apply on the note the sum of about $1,000, and the fifth answer was that defendant had paid the note in full. Plaintiff filed his motions to set aside the above answers to special questions, for judgment non obstante veredicto, and for a new trial. These motions were all denied, and defendant was given judgment for his costs. Plaintiff then perfected his appeal.
In his brief appellant states the question involved is: “Are general verdict for defendant and specific findings consistent with each other and with the pleadings and proof?” Our attention is directed to claimed inconsistencies between the answer first filed, and that upon which the second trial was had, and to the fact that the proof as to the date and amount of payments does not agree with the allegation the note was paid in August of 1934. We do not think the claimed inconsistency between the two answers compels any reversal. Under G. S. 1935, 60-710, the defendant may set forth in his answer as many grounds of defense or setoff as he may have. If the matters alleged in the two answers had been in one, they would ,not have been inconsistent. Had the defendant proved payment, of course that would have been a complete defense, but had he there failed, he might still have a setoff. In any event,’ the first answer was received in evidence on the second trial, and the jury undoubtedly considered it in reaching its verdict.
Perhaps the substance of appellant’s complaint is that defendant failed to prove the payment of $1,000 mentioned in answer to special question three. We are not concerned with evidence tending to show the payment was not madeq—only with that tending to sustain the answer. (Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812; Galamba v. Steinberger, 153 Kan. 501, 504, 112 P. 2d 78.) Briefly stated, defendant’s evidence showed that prior to March, 1933, he was indebted to the First National Bank on two notes of about $2,000 and $2,300; that in March, 1933, he was told by the bank it was in need of money and he paid the conservator $3,000. After Christy bought the note and demanded payment defendant informed him that if Christy would get the bank’s books he would try and show the note was “all squared up” and Christy said he couldn’t furnish the records, “I had them burned.” It may here be noted that one of plaintiff’s witnesses, who had been assistant receiver of the bank, testified that just prior to the close of the receivership the books of the bank had been burned. The abstract does not show the testimony of any official of the bank that in any manner disputes the defendant’s testimony with reference to his two notes and the claimed payment.
As to the other payments, defendant testified he kept no records, and that some of his payments were made by endorsement of wheat checks payable to him. That the payments credited on the note were made is not disputed—they were endorsed on the note when plaintiff acquired it and he was not in a position to dispute them.
Essentially all that the appeal presents is a question of fact. The answers to the special questions are consistent with the general verdict, and are consistent with and supported by the evidence. The verdict and findings have received the approval of the trial court, and under repeated decisions, are conclusive on appeal.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained by plaintiff and to his truck by the alleged negligence of defendant Honstead, who was driving on the highway in front of plaintiff, stopping his truck without warning. The defendants, separately and collectively, demurred to the amended petition for the reason that it does not state facts sufficient to constitute a cause of action against them, or any of them. This demurrer was overruled, and defendants have appealed.
On behalf of the appellant Honstead it is argued that the petition is too indefinite as to who was driving his'truck. The allegations respecting that may be summarized as follows:
“. . . defendant’s truck was being driven in the same direction. . . . That the defendant Stewart Honstead and his driver knew that plaintiff’s truck was following defendant’s truck, but, notwithstanding such knowledge, the' defendant or his driver stopped defendant’s truck. . . .”
While there is uncertainty as to whether defendant or his driver performed the alleged negligent act, the lack of definiteness is not of a character which should prejudice defendant, since he should have knowledge of those matters. In the brief for appellee it is said the allegation was made as definite as it was possible for plaintiff to make it. We think the indefiniteness is not so great as to require a sustaining of a demurrer to the petition.
With respect to the insurance company it is alleged that on the date in question the defendant insurer “was carrying the liability insurance on defendant’s truck in accordance with the laws of the state of Kansas.” It is argued on behalf of the appellant insurer that this is insufficient to state a cause of action against the insurer. We think the point is well taken. A liability insurance policy may be of such a character that an action against the insurer will not lie until liability is established. (Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276.) There is no allegation that the defendant Honstead had been licensed as a carrier and a certificate issued to him by the state corporation commission, and that the insurance policy was of the type required of such a character as was before the court in Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918. Even if the allegation made could be construed into such an allegation, which we think cannot be done, it would still be incumbent upon the plaintiff to allege and prove that the truck was being operated under the certificate at the time of the collision. See Smith v. Republic Underwriters, 152 Kan. 305, 103 P. 2d 858, and Schoonover v. Clark, ante, p. 835, 130 P. 2d 619, and authorities therein.
Appellants argue that under the allegations of the petition plaintiff was guilty of contributory negligence. We think that cannot be said as a matter of law. The question is properly one for the jury.
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The opinion of the court was delivered by
Allen, J.;
On May 8, 1941, the plaintiffs agreed to execute four oil and gas leases on 320 acres of land in Reno county, to the defendant Mark Kleeden. The leases were to be executed and placed in escrow to be delivered to Kleeden when contracts for drilling on the land had been procured by Kleeden. The defendant Kleeden agreed to accept the leases and to drill a test well when he was furnished an abstract showing plaintiffs had a good and merchantable title to the land. Defendant Kleeden declined to accept the leases tendered by plaintiffs on the ground the plaintiffs did not have a good merchantable title. Thereupon the plaintiffs filed the present action praying for specific performance of the contract. This appeal is from a judgment for plaintiffs.
The plaintiffs claim under the will of William Ray Ghormley, who died March 7, 1909. The will provided:
“Second: I give, devise and bequeath unto my beloved wife, Sarah H. Ghormley, to have and to hold during the term of her natural life and enjoy the use, rents and profits thereof, the following described real estate, lying and situate in the county of Reno, in the state of Kansas, to wit: (description <?f land) and it is my will that at the death of my said wife the above described real estate shall go to and become the property of my beloved children, viz.: Carrie Jane Flagg, nee Ghormley, my daughter; my son, D. W. Ghormley; my daughter, Hattie E. Hamilton, nee Ghormley; my son, Charles E. Ghormley; my daughter, Jessie Pearl Murphy, nee Ghormley; and my son, John Ray Ghormley, share and share alike.
“And should I survive my said wife, then at my death the above-described real estate shall go to my said children, share and share alike.
“Should any of my said children die before the decease of my said wife, then at her death, the share which would have gone to such deceased child, shall go to the children of such deceased child and if there are no children and the deceased child leave a wife or husband then one-half of such share shall go to said surviving wife or husband, and the other half to the brothers and sisters of such deceased child, share and share alike. And should I survive my said wife, then at my death, if any of my children shall have died leaving children, then the children of such deceased child shall take such deceased child’s share, share and share alike; and should such deceased child die leaving no children but leaving a wife or husband, such wife or husband shall take one-half of said deceased child’s share and the other half thereof shall go to the brothers and sisters of such deceased child, share and share alike; and in case any of my said children shall die before the decease of my said wife or prior to my decease and leave no wife or husband or children, then the entire share of such deceased child shall go to the surviving brothers and sisters of such deceased child.”
At his death the testator left surviving his widow Sarah H. Ghormley and his six children mentioned in his will. They are the plaintiffs in this action.
Plaintiffs contend the remainder to the children was indefeasibly vested, and therefore the lease executed by the widow and the children would pass a merchantable title. Plaintiffs cite and rely on Bunting v. Speek, 41 Kan. 424, 21 Pac. 288; McLean v. Stanley, 134 Kan. 234, 5 P. 2d 839; Stevenson v. Stevenson, 102 Kan. 80, 169 Pac. 552; Anderson v. Wise, 144 Kan. 612, 62 P. 2d 805, and Faris v. Nickel, 152 Kan. 652, 107 P. 2d 721.
On behalf of defendant Kleeden it is asserted that the interest owned by the children “is a contingent interest, or at best a vested interest subject to divestiture—which in either event makes the title offered by appellees unmarketable.” In support of these contentions our attention is directed to Williams v. Bricker, 83 Kan. 53, 109 Pac. 998; Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950; Purl v. Purl, 108 Kan. 673, 197 Pac. 185; Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146; Robinson v. Barrett, 142 Kan. 68, 45 P. 2d 587; Koelliker v. Denkinger, 148 Kan. 503, 83 P. 2d 703; Jonas v. Jones, 153 Kan. 108, 109 P. 2d 211, and Ward v. Ward, 153 Kan. 222, 109 P. 2d 68.
If the remainder to the six children of the testator was indefeasibly vested the judgment must be affirmed. If the remainder to the children was contingent, or if it was vested but liable to be divested upon the contingencies specified in the will, then the judgment cannot be sustained.
In determining the questions presented, the intention of the testator must be our guide. The intention is to be ascertained by reading the will as an entirety, rather than from any clause or paragraph considered by itself. These principles are so firmly established as to render the citation of authorities unnecessary.
We have quoted item two of the will, which contains three paragraphs. Under the first paragraph the testator gave his wife a life estate in the land in question and provided that at her death the property was to go to his six named children, share and share alike. If the testator had stopped with the first paragraph, the remainder in the six named children would have been indefeasibly vested. But it was further provided that if any of the children should die before the death of the testator’s wife, the share of such child was to go (1) to the children of such child, and (2) if no children, then in case the deceased child should leave a wife or husband, then one-half of the share of the deceased child was to go to the surviving wife or husband and one-half to the brothers and sisters of such deceased child, and (3) if no children, and no wife or husband, then the entire share was to go to the surviving brothers and sisters of such child.
The intention of the testator is free from doubt. Why should not the intention of the testator so plainly expressed be carried into effect?
That a vested remainder may be subject to complete defeasance has been held in many of our cases. In Markham v. Waterman, 105 Kan. 93, 181 Pac. 621, the testator gave a life estate to his wife, with a vested remainder to his children and clothed the life tenant with a power of disposition. The fact that a sale by the life tenant in the exercise of the power given would divest the remainder in the children did not prevent the remainder from being vested. It was there stated: “The fact that the life tenant has the power of disposition—the power to exhaust the property—does not alter the legal status of the remainderman’s right.” (p. 97.) Well-reasoned opinions in other jurisdictions are to the same effect. (Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558; Caples v. Ward, 107 Texas 341, 179 S. W. 856.)
In Markham v. Waterman, supra, reference was made to Blanchard v. Blanchard, 1 Allen (83 Mass.) 223. In that case the testator devised land to his wife for life with remainder to his five named children, and provided that if any of the children should die before his wife the property was to go to the survivors, except they should leave issue, in that case to go to such issue. The court ruled that the remainder to the children was vested defeasible upon the stated contingency.
In Paris v. Nickel, 152 Kan. 652, 107 P. 2d 721, the testator devised land to his wife for life “with remainder at her death to my children, in fee simple, forever, the descendants of any deceased child or children to take the parents’ share.” It was held the remainder was vested, but if any child died before the life tenant leaving children, it would be divested in favor of such children. As that event did not happen, the remainder of the son who died was not divested. See, also, Hammond v. Martin, 100 Kan. 285, 164 Pac. 171.
In Gray on Perpetuities, 3d ed., § 108 (3), it is stated:
“. . . Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus ort a devise to A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent.”
We think it was free from doubt that the remainder to the children is vested but liable to be divested upon the contingencies expressed in the will. Was the title marketable? In Eisenhour v. Cities Service Oil Co., 149 Kan. 853, 89 P. 2d 912, the rule is stated:
“A title need not be bad in fact in order to be nonmerchantable or unmarketable. It is sufficient to render it so if an ordinarily prudent man with knowledge of the facts and aware of the legal questions involved would not accept it in the ordinary course of business.” (Syl. ¶ 3.)
Under the rule there stated (and followed in our recent case Ayers v. Graff, 153 Kan. 209, 109 P. 2d 202) we hold the title tendered the defendant Kleeden was not a marketable title. Until the death of the life tenant the final destination of the property cannot be determined.
The judgment is reversed and the cause remanded with directions to enter judgment in favor of the defendant Kleeden.
Hoch, J., not participating.
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The opinion of the court was delivered by
Allen, J.:
This was an action to enjoin the threatened violation of certain restrictive agreements forbidding the erection of any buildings except single family residences in Lincoln Heights, an addition to the city of Wichita.
The appellants platted a large tract, of land adjoining the city of Wichita. For a period of years beginning early in 1927 to about J anuary, 1941, they followed a general plan of development and adhered to uniform restrictions which they established and under which the entire addition, with the exception of two blocks, had been advertised, sold and developed as a highly restricted residential district, limited to single-family, two-story homes of specified minimum cost. After more than five-sixths of the entire addition had been sold and developed in conformity with such plan and restrictions over the period, the appellants for the first time, on January 9, 1941, attempted to sell some of the lots to which the foregoing plan and restrictions had theretofore applied, to be used for the purpose of erecting thereon a church building. This use was in conflict with and contrary to the general plan of development and restrictions theretofore observed throughout the addition. Plaintiffs, who owned property lying within the addition and near by the lots which defendants seek to sell for church purposes, brought this action to enjoin the appellants from completing the sale to the church. The injunction was granted by the trial court and appellants seek to have that judgment reversed here.
The court made findings of fact and returned conclusions of law. We quote portions of the findings:
“1. On August 3, 1926, Walter Morris purchased a tract of ground containing seventy-three acres for a consideration of $110,000, or at a price of $1,506.85 per acre.
“2. This tract of ground was platted on the 5th day of February, 1927, and the tract was laid out into a total of fourteen blocks. Blocks 3 and 14 are platted as commercial sites and other blocks as residential sites with a building set-back. The twelve blocks contain a total of 239 lots. The streets vary in width from fifty feet to eighty feet. Eleven little parks or beauty spots are found in the streets. The widest street is Pershing avenue, which is eighty feet. The addition, on the crest of College Hill, extends from Douglas avenue on the north to Kellogg street on the south, contains seventy-three acres more or less, and is known as Lincoln Heights addition to the city of Wichita.
“3. After the property had been platted the defendants began an adver tising eompaign with the purpose of inducing the general public to buy lots and to build elegant homes. Evidence of some of the things done in this advertising campaign is shown in plaintiffs’ exhibit 23 and in brochure exhibit 20.
“4. Advertisements in Wichita newspapers referred to the addition in flattering terms, among which were: ‘a super-residential center—a super-shopping and home-owning center.’ Throughout the advertising the home interest, the playgrounds, parks, winding drives, and bubbling fountains were referred to. Some advertisements referred to it as ‘a residential section of unique and exclusive homes.’ Some advertisements referred to it as ‘the most exclusive and highly restricted subdivision on College Hill.’ Some advertisements asked: ‘How much is it worth to live among congenial neighbors? How much is it worth to have a restricted community surrounding you?;’ referred to ‘exclusive two-story residential homes;’ stated, ‘It is, and will continue to be, permanent and enduring.’ In May, 1928, the plat of the entire addition was shown in the Wichita Eagle.
“5. In the brochure, exhibit 20, appears a plat of the addition. There are penciled notations on this plat showing the prices of different lots and showing that the houses in the first block on South Pershing are to cost $18,000, and in the next two blocks $15,000 each. In block 5, facing on Oliver street, the restriction is $6,500. The plat is referred to as a—
“ ‘Plat of the finest residential district in Kansas. The area and frontage of each lot, the curve of boulevards, position of park areas, building set back, combined with carefully analyzed restrictions insures to each home owner the greatest value increment possible. The best business men are choosing this development for their home environments.’
There is a reference to ‘all two-story homes’ and again to ‘exclusive two-st'ory homes.’ The defendants state that they ‘contemplate the expenditure by them alone of five hundred thousand dollars for homes in Lincoln Heights.’ Blocks 3 and 14 are indicated to be commercial.
“6. Twenty-six homes were built by Walter Morris & Son and sold to different purchasers and conveyed without the deeds containing any restrictions. See exhibits 1 and 4. The defendant Will Morris stated to inquirers and prospective purchasers that these houses were all two-story houses and complied with the restrictions contained in the deeds; that Walter Morris & Son intended to place such restrictions in deeds of adjoining property when sold and improved, and therefore it was not necessary to place statements of restrictions in the deeds to properties improved by defendants.
■ “7. As seen from the contracts of sale, exhibits 9 and 22, and the recitals in the deeds themselves, the general nature of the restrictions in all residential lots throughout the addition is as follows:
“(A) The property is to be improved for no other than one single-family two-story residence.
“(B) A price restriction as to cost of house to be built depending upon the location of the lots in the addition.
“(C) No garage, out-building, or temporary buildings to be used on the premises as. a residence pending the time of erecting the dwelling.
“(D) Restricting conveyance by grantee to white persons only.
“(E) No used, second-hand, or previously constructed house or building to be moved or placed as a whole or in sections upon the lot.
“(F) The plans, set-back, elevations, and grades, to be approved by defendant, Walter Morris.
“(G) Violations of the restrictions to be restrained, enjoined, and prevented by the grantor, his heirs or assigns by any legal or equitable remedy.
“(H) Restrictions to cover a period of twenty years from date of conveyance.
“8. In the sale of the lots a printed form of contract was used (exhibit 9), which contained the restrictions which later appeared in the deed (exhibit 1). Salesmen acting as agents for defendants in selling lots, defendant Will Morris, and different builders of the said Walter Morris & Son, represented to purchasers and prospective purchasers that Lincoln Heights was being developed as a unit; that the houses to be built on the property were to be two-story houses, of new construction; that no garages were to be used as residences pending the completion of the house itself; that the conveyances were to be made' to people of the white race only; that there was a cost restriction on the houses, the amount of the cost restriction depending upon the location of the house; it was represented that the restrictions would last for a period of twenty years. In selling houses which were built by the defendants, Walter Morris & Son, no restrictions were contained in the deeds for the reason that the houses as built .complied with the restrictions to be put upon the adjoining property. It was represented by the defendants Walter Morris & Son to prospective purchasers and purchasers that when sales of lots were later made, the same restrictions would be in the deeds of all other succeeding purchasers in the addition as were contained in the respective deeds delivered to the purchasers. It was represented by them that there' was a general plan of improvement of the whole addition that would be followed out by them in successive sales. The purchasers bought their property in reliance upon these statements and representations. In none of the conversations with purchasers and prospective' purchasers was it ever represented or stated by the defendants, their salesmen, and builders, that a church might be built upon any part of Lincoln Heights. The statements aforesaid and the advertisements aforesaid were to the effect that nothing would be built in Lincoln Heights Addition but two-story, single-family residence buildings with specifications meeting the approval of the said Walter Morris & Son and their general plan of improvement.
“9. The general plan of improvement of Lincoln Heights by the defendants, Walter Morris & Son, has been that the property was to be conveyed by deeds containing the restrictions set out in paragraph 7, unless the property was improved by the defendants in a manner to meet the restrictions, in which event the property was conveyed without the restrictions being in the deed. The general plan contemplated that the property was to be developed in accordance with the advertising campaign conducted by the defendants (paragraphs 4 and 5) and in accordance with the representations made by the defendants Walter Morris & Son, and-their salesmen and builders. (Paragraphs.)
“10. The public obtained knowledge of the foregoing general plan of development as the result of defendants’ advertising and the statements of the defendants, Walter Morris & Son, their salesmen and builders. That there was a general plan of development, could be and was inferred by the general public by observing Lincoln Heights addition itself as developed and by observing the buildings, the parkways, and the printed sign loeáted upon Lincoln Heights.
“11. Lots in Lincoln Heights .on Oliver street sold for $10 a front foot, while property across the street on the east side of Oliver which was not in a restricted addition sold for $5 a front foot. In an unrestricted area just north of Douglas avenue, across the' street from block 2 in Lincoln Heights addition, lots could be bought for one-half the price defendants were selling lots in blocks 1 and 2 in Lincoln Heights addition. The value of the property in Lincoln Heights was increased because of the restrictions and the general plan of development, and the defendants realized more for their lots by reason of the general plan of development than they would have if they sold them without restrictions. Purchasers of lots in Lincoln Heights paid substantial amounts for their lots.
“16. No written restrictions of any kind or character were included in the recorded plat of Lincoln Heights addition, and no general written restrictions were ever made and recorded concerning Lincoln Heights addition by the defendants Walter Morris & Son or their authorized agents separate and apart from the contracts and deeds which convey the separate lots to their respective purchasers hereinbefore mentioned.”
On January 9, 1941, the defendants Walter Morris & Son agreed to sell and convey to the Grace Presbyterian church certain lots in block 2, in Lincoln Heights.
In the deed from Morris to the plaintiff Hobbs conveying lot 4, block 1, in Lincoln Heights, the restrictions were not as extensive as stated in finding No. 7 above quoted. The testimony disclosed, however, that Hobbs was required to submit his building plans before he purchased the lot. He was virtually in the same situation as the purchasers described in finding No. 6.
The plaintiff Lindsley -acquired title to certain lots in block 2, Lincoln Heights, from Throckmorton, who had received title under a deed from Morris. The plaintiff Reeves acquired title to lot 13, block 2, in Lincoln Heights, from Friedson, who had received title under a deed from Morris. The deeds from Morris to Throckmorton and Friedson contained restrictions substantially the same as mentioned in finding No. 7 above quoted.
The trial court returned conclusions of law as follows:
“1. In view of the foregoing facts, the court finds that there was and is a reciprocal negative easement in favor of plaintiffs and against defendants, arising by implication in equity, inhering in the title for a period of twenty years, barring the defendants Walter Morris & Son from carrying out their present contract with the Grace Presbyterian church, and barring the defendants from selling said property to the Grace Presbyterian church without incorporating in the deed the restrictive covenants found in previous deeds when like property was conveyed.
“2. The holdihg out to the general public of the whole addition as represented in the findings as an exclusive residential district for homes only inheres in the land for the period of the restriction.
“3. The statute, of frauds invoked by defendants Walter Morris & Son does not apply in this case, for the well-known doctrine is that the statute of frauds itself cannot be held to perpetrate a fraud.
“4. Injunction should issue in favor of plaintiffs and against defendants as prayed for.”
On this appeal defendants contend that under the judgment of the trial court the plaintiffs hold an easement in the land of defendants; that an easement is an interest in land; that under the statute of frauds a contract for sale of lands or any interest therein is void unless the agreement is in writing. It is also contended that the alleged restrictions in the deeds given by defendants were merely conditions subsequent and were therefore enforceable only by defendants “personally or their assigns.” It further urged that the erection of a church within the restricted area would not be a violation of the restrictions.
Restrictive covenants have long been recognized in this state. (Hartman v. Wolverton, 126 Kan. 613, 270 Pac. 584; Clark v. Vaughan, 131 Kan. 438, 292 Pac. 783; Welsh v. Flo, 146 Kan. 807, 73 P. 2d 1084; N. P. Dodge Corp. v. Calderwood, 151 Kan. 978, 101 P. 2d 883.)
These restrictions or equitable servitudes are based on the equitable principle of notice—that the person who takes land with notice of a restriction upon it will not in equity and good conscience be permitted to act in violation of these restrictions. (2 Tiffany, Real Property, 2d ed., 1425 et seq., §§ 394-401; Clark, Covenants and Interests Running with Land, p. 148.)
The doctrine was stated in the leading case of Tulk v. Moxhay (1848), 2 Ph. 774, 41 Eng. Reprint, 1143:
“That this court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing a part of it, that the latter shall either use or abstain from using the land purchased in a particular way, is what I never knew disputed. Here there is no question about the contract: the owner of certain houses in the square sells the land adjoining, with a covenant from the purchaser not to use it for any other purpose than as a square garden. And it is now contended, «not that the vendee could violate that contract, but that he might sell the piece of land, and that the purchaser from him may violate it without this court having any power to interfere. If that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is said that, the covenant being one which does not ran with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.
“That the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it; for if an equity is attached to^ the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased. . . .” (p. 777.)
In 4 Pomeroy’s Equity Jurisprudence, 4th ed., § 1696, it is stated:
“Where an owner of a tract of land lays it out in building lots, makes a plan showing a general building scheme, and sells in accordance therewith to various purchasers, inserting restrictions in all the deeds, the intent will be inferred. .The purpose of the restrictions is clearly to benefit all the land in the tract and to make an. inducement for purchase. Accordingly, one grantee may enjoin a breach by another, or by one who takes with notice. . . .”
In Walsh on Equity, § 100, it is stated:
“Probably the most usual situation involving equitable easements is a real-estate development in which common restrictions are placed upon all the lots or plots into which the development is divided, intended to bind each lot for the benefit of each and all of the others, each individual lot being bound by the restriction in favor of every other lot, and at the same time receiving the benefit of the restrictions as they bind the other lots. . . . The reciprocal implied restrictions, implied from the facts establishing the existence of a common scheme for the mutual advantage of all, and enforced by equity because the parties so intend, are void at law because the formal requirements of conveyances of legal estates in land are lacking. Because the land is bought and paid for on the basis of the existence of these restrictions as easements for the benefit of the lots sold as against the lots retained by the developer, equity enforces them as though they had been created in due form at law, just as equity enforces an equitable mortgage where the loan is made based on an agreement that the property should be security for the loan, though the required formalities of a legal mortgage are absent. . . .”
In Evans v. Foss, 194 Mass. 513, 80 N. E. 587 (1907), the doctrine of equitable servitudes is thus stated:
“It is a familiar principle of law . . . that when one makes deeds of different portions of a tract of land, each containing the same restriction upon the lot conveyed, which is imposed as a part of a general plan for the benefit of the several lots, such a restriction not only imposes a liability upon the grantee of each lot as between him and the grantor, but it gives him a right in the nature of an easement, which will be enforced in equity against the grantee of one of the other lots, although there is no direct, contractual relation between the two. Through the common character of the deeds the grantees are given an interest in a contractual stipulation which is made for their common benefit.” (p. 515.)
In Johnson v. Mt. Baker Park, etc., Church, 113 Wash. 458, 194 Pac. 536, the action was to enjoin the appellant from erecting a church in a restricted addition to the city of Seattle. As the facts are similar to the case at bar, we quote from the opinion at length. The court stated:
“We have here, then, a case involving the following outstanding facts: The improvement company platted this land and put it on the market with the intention of limiting the use of the various lots to residences only. This intention has been in all respects made public and known to each purchaser, and has been systematically carried out. Conforming to this scheme, some years ago. it sold lots to the plaintiffs, and its deeds of conveyance contained building restriction clauses. When more than three-fourths of the lots had been conveyed by similar deeds, it conveyed to appellant the lot in question by deed which did not contain any use restriction, but appellant at the time of purchase had complete notice of the restricted use plan.
“The statute of frauds cannot be involved except where the question of interest or easement in land is involved. We think it must be conceded that in this case the respondents have no interest or easement in appellant’s land in the sense of the statute of frauds. There is certainly nothing in the case to show any writing creating such interest or easement, nor is there anything which might be construed as creating or attempting to create such interest or easement, other than the testimony to the effect that, when it made its deeds to respondents, the improvement company represented to them that restriction clauses would be placed in all deeds made by it. But this, being only an oral promise, would be wholly unenforceable as an attempt to create an interest or easement in appellant’s land.
“The oral testimony in this case was admissible, not for the purpose of attempting to create an interest or easement in appellant’s land, but only for the purpose of assisting in showing the general restricted use program, initiated in the beginning by the improvement company and subsequently carried out. If, therefore, respondents’ right to relief must be based on some interest or easement in, or encumbrance upon, appellant’s land, they cannot succeed.
“But we are of the opinion that the statute of frauds is not in this case, and that the respondents are entitled to the relief sought by them without having an interest or easement in appellant’s lot. Their rights are based solely on equitable principles. It is immaterial whether they have' any interest or easement in appellant’s property. The point is whether, in good conscience, and by the application of well-known equitable principles, the appellant is estopped to use its property for the purpose of building a church thereupon.
“Here the appellant bought its property with knowledge of all the facts; it knew that the improvement company from the beginning had established and advertised a general plan whereby all of the property in this subdivision should be used for residence purposes only; it knew that the improvement company had agreed with a great many purchasers of lots, that the platted addition would be used only for restricted purposes; it knew that the deeds to nearly all lots which had been sold contained clauses restricting the use of the lots sold. In fact, by the contract which it entered into with- the improvement company when it bought its lot, it agreed to protect the improvement company against any damage or expense resultant from deeding to it without restrictions, and therein it expressly agreed that, if it sold its lot before constructing the church, it would insert in its deed the restrictive clause. Notwithstanding all of this knowledge, it now proposes to build its church in direct contradiction to the general development plan known to it. If appellant may, under these circumstances, build a church, so may the owner of another lot build an apartment house, or a flat, or a public garage, or a store building.”
See, also, Sanborn v. McLean, 233 Mich. 227, 206 N. W. 496; Rowe v. May, 44 N. M. 264, 101 P. 2d 391; De Gray v. Monmouth Beach Clubhouse Co., 50 N. J. Eq. 329, 24 Atl. 388; Adams v. Field, 297 Pa. 247, 146 Atl. 889.
Defendants contend that the restrictions in the deeds from Morris to the plaintiffs or their predecessors in title created an estate with a condition subsequent enforceable only.by Morris or his successors in interest. We are unable to agree with this contention. It was an established rule of the common law that the power to terminate an estate upon a breach of a condition subsequent belonged exclusively to the grantor, and after his death to his heirs. Any attempt to authorize a third person to enforce a forfeiture was void. (Tiffany on Real Property, 2d ed., section 86.) Among the many authorities cited by the author in support of this principle is the case of McElroy v. Morley, 40 Kan. 76, 19 Pac. 341, which is relied upon by the -defendants. That the rule stated is sound admits of no doubt, but it has no application to equitable servitudes created by the restrictions in the deeds and the general building scheme in this case. (See Tiffany on Real Property, 2d ed., sections 75 to 89, dealing with estates on condition subsequent, and sections 394 to 401 where the author examines the doctrine of restrictions enforceable in equity.)
The judgment of the trial court was supported by the evidence. The addition known as Lincoln Heights was laid out under a general building scheme. Restrictions were inserted in the deeds to the various purchasers and it is 'clear the restrictions were for the benefit of all the land in the addition. Lots were purchased, homes were built and large investments were made upon the faith of these restrictions. As the restrictions were for the benefit of all, they were reciprocal in character and could be enforced by the plaintiffs herein. Under these agreements enforceable in equity, the restricted districts in our cities have been developed and the value of the property in such districts depends in a large measure upon their enforcement.
As we find no error in the record, the judgment must be affirmed. It is so ordered.
Hoch, J., not participating.
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The opinion of the court was delivered by
Smith, J.:
This is an action by a minor by his next friend to recover damages alleged to have been sustained when a prescription for eserine was filled by one of the defendants with atropine and the atropine was used in the minor’s eyes according to the doctor’s prescription. Judgment was for the plaintiff. Defendants appeal.
After setting out the address of the parties and the incorporation of one of the defendants and that Breidenthal was employed by the company, the petition alleged that on August 31, 1935, plaintiff received a prescription for “eserine % of 1% Z 1/IV Sig.—one drop in each eye twice a week” from a doctor; that the prescription was filled by defendant on the same day; that Breidenthal, an employee of defendant drug company, with reckless disregard of his duty amounting to gross negligence, used the wrong ingredients to fill it; that within a short time Jack Boeck began to complain of sore eyes, headaches, dizziness, disordered stomach, and about the first week began to vomit; his eyes became weak; sometime about six weeks later he was forced to drop his music instruction; that about that time plaintiff learned that the bottle contained the1 wrong prescription; that as a direct result of the negligence of defendant the eyesight of Jack Boeck had been permanently rendered defective; that this negligence was gross and wanton.
The prayer was for $25,000 punitive damages and $25,000 actual damages.
The answer was a general denial and a plea of contributory negligence.
Jack’s father testified about getting the prescription filled by defendant Breidenthal at a store operated by defendant Katz; that they used the prescription and after the second time he noticed Jack not walking like he should, and several times he ran into a chair; that Jack vomited all the timej they were using the medicine; that before Jack started using the medicine he played like any boy would; was in Knapp’s Rough Riders and drove a chariot and rode at night; that Jack started wearing glasses about fifteen months previous to August 31, 1935; that after about two weeks of using the medicine he noticed once when Jack started to open the car door he went to the rear of the car about six feet away from the door; that since using the medicine Jack has never ridden his pony; never driven his car; has not gone out alone at night; has not played with other children; that Jack was operating a ditto machine at the time of the trial; that he kept on giving the boy the medicine even though he said it hurt him and even though he vomited; gave it to him for six weeks; every time he was given the medicine it made him sick and he would vomit.
Another witness testified that Jack did not ride his pony after September, 1935.
The plaintiff testified that he was fourteen years old in August, 1935; at time of trial he was working for Dun and Bradstreet; that he only had to see in front of him to operate his machine; before taking this prescription he belonged to Knapp’s Rough Riders, doing trick riding; after the second drop in his eyes he started getting sick at the stomach; every time he would eat something he could not hold it down; was nervous and had headaches; had none of these things before using the medicine; about two weeks after August 31, 1935, at nighttime he could not find anything when he went outside; at time of trial could not see to the right or left without turning his head; atropine in his eyes always made him sick.
There was further evidence as to Jack’s activities before and after using the prescription.
For the plaintiff, Doctor Lidikay, after being qualified as an expert, testified that he examined Jack’s eyes March 25, 1940; that he found him suffering from retinitis pigmentosa, that is, a degenerative condition of the margin of the retina; that this disease causes night blindness and is a progressive disease; that night blindness occurs sometimes from fasting. A hypothetical question covering the condition of the plaintiff was then propounded to the doctor and he was asked whether he had an opinion that atropine had anything to do with the condition of Jack. The doctor’s answer was “yes.” The doctor testified that atropine would dilate the pupils and make them sensitive to light; that there were people who were sensitive to atropine and that headaches and nausea were symptoms; that there was no cure for the condition he found in Jack’s eyes.
On cross-examination he testified that the use of atropine could not start retinitis pigmentosa. On redirect examination, when his attention was called to a textbook statement that during the last war numerous cases of night blindness were discovered in which the determining causes were great fatigue, loss of blood and refraction error, especially myopia and astigmatism, he stated that this was one of the authorities for his statement in answer to the hypothetical question, that it was a nutritional thing; that atropine could cause the condition described by causing a person to be sick and vomiting and lowering his vitality.
Jack’s mother testified to about the same general effect as his father had.
The defendants demurred to the evidence of plaintiff on the ground that it did not show facts sufficient to constitute a cause of action. This demurrer was overruled. That ruling is the first error urged by defendants.
In the consideration of this question we must take the evidence of plaintiff as true and give the plaintiff the benefit of all reasonable inferences and presumptions to be drawn from the circumstances proved by him. The first argument of defendants is that the evidence wholly failed to prove that the use of the atropine caused the plaintiff’s condition. At the outset, it should be noted that defendants concede that there was substantial evidence that defendant did put atropine in the prescription instead of eserine. It is conceded also that atropine dilates the pupils and eserine contracts them.
Defendants point out and rely on the testimony of plaintiff’s doctor that the condition from which Jack was suffering could not have been caused by the use of atropine. The testimony of the doctor taken as a whole can hardly be given that construction. The plaintiff does not deny that he was suffering from retinitis pigmentosa at the time of trial. He argues, however, that there was substantial, competent evidence tending to show that the use of atropine caused the disease to develop much more rapidly than it would have done otherwise. Such a question may be established by circumstantial, as well as by direct evidence. See Railway Co. v. Colliati, 75 Kan. 56, 88 Pac. 534; also Bank v. Freeburg, 84 Kan. 235, 114 Pac. 207; and Betterment Co. v. Reeves, 77 Kan. 111, 93 Pac. 627.
Doctor Lidikay did not examine Jack until almost four years after the prescription was used, but Jack’s father and mother and playmates testified to the effect that his condition became worse right after the atropiné was used and never did return to normal. The persuasive feature of the doctor’s testimony was his answer to the hypothetical question to the effect that he had an opinion that the atropine had something to do with Jack’s condition and his further testimony in view of the evidence about the atropine causing Jack to vomit every day for six weeks; that the night blindness was caused sometimes by malnutrition or lowering of vitality. It should be noted in this connection that the plaintiff did not base his right to recover in his petition on the fact that the use of the atropine caused him to 'have retinitis pigmentosa. He only pleaded that its use damaged his eyes. If the latent susceptibility to the disease was there when the atropine was used the defendants would be liable if their negligence damaged the eyesight of the plaintiff even though the damage was rendered worse or aggravated by the latent existence of the disease. The rule is stated in 22 R. C. L., p. 150, as follows:
“The general principle is that ill health and the various kinds of mental or physical disability which follow the negligent . . . infliction of a direct bodily injury are such natural and probable consequences of the injury as the tortfeasor must answer for.”'
See, also, Jones v. City of Caldwell, 20 Idaho 5, 116 Pac. 110.
Following the foregoing rule, we hold that the question of whether plaintiff was damaged by the negligence of defendants was a proper one to submit to the jury. The demurrer of defendants to the evidence of plaintiff was properly overruled.
Defendants next argue that the trial court erred in overruling their motion for a directed verdict in their favor. The same answer may be made to this argument that was made to their argument that the demurrer to the evidence of plaintiff should have been sustained.
Defendants next argue that the court erred in instructing the jury as follows:
“If you find from the preponderance of the evidence that the defendant Breidenthal acting in his capacity as clerk and pharmacist for the defendant, Katz Drug Company, was negligent in failing to fill or compound the prescrip tion of the physician in accordance with its contents and requirements, as written, so that in fact atropine was delivered to the plaintiff, instead of eserine, then such negligence of said Breidenthal is equally binding upon him and his employer, said Katz Drug Company.”
Defendants argue that this amounts to an instruction that if'the jury found that atropine was delivered instead of eserine they should find for the plaintiff. The instruction does not say that. What the instruction intended to cover was the question of whether or not the Katz Drug Company was liable for the negligence of its employee, Breidenthal, and it stated the law correctly.
Defendants next argue that the court erred in refusing to give certain requested instructions. We have examined these instructions and also the instructions that were given. We have concluded that the subject of the requested instructions was covered very well in the instructions that were given and there was no error in refusing to give any of the requested instructions.
Defendants next argue that the court erred in refusing to set aside answers to certain questions. The first of these was question No. 4. Question No. 4 and answer are as follows:
“Could atropine cause or contribute tp the disease called retinitis pigmentosa? A. Contribute.”
The surrounding circumstances and expert evidence of Doctor Lidikay were substantial evidence to sustain the above answer.
Defendants argue that Doctor Lidikay testified that he had an opinion but that he was never asked to state what that opinion was. We think that this is not a correct interpretation of the answer. From examining the question and the colloquy that occurred before the doctor was permitted to answer the above, we have concluded that the fair interpretation is that the doctor testified that in his opinion the atropine did have something to do with the disease.
The next question which defendants argue should be set aside is question 9-a. That question and answer are as follows:
“Did the defendants deliver to the plaintiff or his father or mother two bottles of medicine, one on August 31, 1935, and another bottle on or about October 26, 1935? A. No.”
We fail to see how this could have any effect on the outcome of the ease, but there was evidence which warranted the jury in making the answer they did.
Defendants next argue that it was error not to set aside the answer to question 11a because it was not supported by the evidence. The question and answer are as follows:
“If you find that the plaintiff suffered any damage by reason of the use of the medicine or liquid sold by defendants on August 31, 1935, state (a) Was the use of the medicine the cause of the condition from which plaintiff is suffering? A. Yes.”
As we have heretofore demonstrated in the case,' there was substantial evidence to warrant the jury in making that finding.
The same is true of the argument of defendants with reference to the answer to question 11-c.
Defendants next argue the court erred in refusing to sustain their motion for judgment on the special findings. We have examined the argument with reference to this question. It appears that defendants argue that because the jury said in, answer to question 3 that retinitis pigmentosa was a hereditary disease caused by a systemic condition and in answer to question 4 that atropine contributed to the disease the two answers were inconsistent. We have demonstrated in this opinion' that there was evidence to the effect that the disease is systemic and that atropine used as this was could aggravate it.
Neither are we impressed with the argument of the defendants that it was contributory negligence on the part of this fifteen-year-old boy to keep on using this medicine because it made him sick. If he had confidence enough to go to the doctor and to ask him to prescribe we cannot say that it was contributory negligence for him to follow the directions as to his medicine even though it did nauseate him.
Defendants next argue that the trial court erred in instructing the jury on the question of punitive damages. In this connection they argue that punitive damages may not be awarded unless there is evidence of gross negligence. They argue that there was no such evidence in this case.
The rule is that in order to constitute wantonness the evidence must show a reckless disregard of the rights and safety of others. The evidence for plaintiff simply showed that- Breidenthal filled the prescription with atropine instead of eserine. In order for us to say that there was evidence of plaintiff to warrant the giving of an instruction on wantonness and punitive damages we would be compelled to hold that where a druggist fills a prescription with the wrong drug he is guilty of wantonness as a matter of law. It is true, as plaintiff points out, that the druggist defendant here testified that he made four checks on this prescription when filling it. Plaintiff argues that this evidence convicts the druggist of gross negligence. On the contrary, it seems to show an intention to guard against mistakes. In the cases cited by plaintiff where telegraph companies were held liable for punitive damages for failure to deliver messages the opinions state there was failure to exercise diligence in finding the person to whom a message was addressed as in transmitting the message. We do not find that situation here.
We do not find it necessary, however, to reverse the judgment of the trial court on that account. As we have heretofore demonstrated in this opinion, there was substantial evidence to warrant the jury in finding that the plaintiff had sustained some actual damages. The instruction we are considering related to the measure of damages only. The plaintiff does not complain of the instruction as to the actual damages. The only effect of this instruction was to cause the verdict to be for a larger amount than it would be otherwise. The jury in this action returned a verdict for $15,000. The jury was not asked to find how much of this was for punitive and how much for actual damages. The trial court found that the verdict as rendered by the jury was excessive in the amount of $7,500 because the nature and extent of disability was insufficient to support a verdict of $15,000, and gave the plaintiff, five days within which to file his remittitur of the sum of $7,500 and ordered a new trial if this remittitur was not filed. The plaintiff did file this remittitur and judgment was for $7,500. The trial court further found that the verdict of the jury was not rendered with passion or prejudice.
We have the same question that this court had in K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 671, 21 Pac. 770. In that case there had been an instruction on punitive damages and gross negligence when there was no evidence to justify it. This court said:
“We have concluded, considering the testimony and verdict, that as we cannot clearly decide that the erroneous instructions might not have increased or exaggerated the verdict, the judgment must be reversed unless Kier, within thirty days, remits 12,000 thereof. If this is done, the judgment of the district court will be affirmed for $5,000.
“We may fairly assume, upon the testimony and verdict, that the jury intended to embrace in the verdict the actual damages which Kier was entitled to recover. The erroneous instructions only related to the' measure of damages; therefore, these instructions only affected the damages allowed. It is apparent from all the testimony that $5,000 will not exceed the actual damages suffered. If the verdict had been for $5,000, it would be clear beyond doubt that the error alleged did not and could not have prejudiced the rights of the railroad company. (Thomas v. Dansby, 41 N. W. Rep. 1088.) While the damages found are not excessive, yet they are a full, round sum for the injuries complained of, and hence, on account of the error committed, the necessity of a modification of the judgment.” (p. 672.)
To the same effect is the holding of this court in Jackson v. Oil Co., 97 Kan. 674, 156 Pac. 756; also Flynn v. Hollenback, 103 Kan. 448, 173 Pac. 925.
In this case the defendants had an opportunity to have the jury find how much of the verdict was for actual and how much for punitive damages. They did not see fit to take advantage of this opportunity. The court found on its own initiative that the verdict was excessive in the amount of $7,500 because the nature and extent of disability was insufficient to support such a verdict. This is entitled to some weight on the question of whether there was evidence of sufficient disability to support a judgment for $7,500. Not every excessive verdict and judgment requires a new trial. Quite often the error can be cured in this court by ordering a remittitur or, in the alternative, a new trial. See Leinbach v. Pickwick-Grey hound Lines, 138 Kan. 50, 23 P. 2d 449; also Hudson v. Yellow Cab & Baggage Co., 145 Kan. 66, 64 P. 2d 43, and many cases.
Following the practice in those cases and prompted to some extent by the action of the trial court in ordering the remittitur we have examined this entire record on the question of whether the final judgment was excessive. There is no exact yardstick to measure the extent to which a. young boy is damaged when his eyesight is impaired. We have concluded, however, that the final judgment is not warranted by the evidence. It is excessive in the amount of $2,500. We are satisfied the jury placed too high a figure on the actual damages to plaintiff by $10,000. The trial court should have ordered a remittitur by that amount rather than $7,500.
If the plaintiff will remit $2,500 of this judgment and so advises the clerk of this court within ten days after the filing of this opinion the judgment of the court will be affirmed; otherwise it will be reversed for a new trial.
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in mandamus wherein the plaintiff, a citizen of African descent, seeks to compel the governing officials of the city of Newton, and one Harold Hunt, to admit him to the privileges of a swimming pool constructed with funds procured by a sale of municipal bonds voted by the electors of Newton in 1934.
The action has received the attention of this court twice before. The first time it was here is reported in Kern v. Newton City Commissioners, 147 Kan. 471, 77 P. 2d 954. At that time an alternative writ had been granted. Counsel for the defendants moved to quash this alternative writ on two grounds—that plaintiff had no legal capacity to maintain the action and that the application did not state sufficient facts to constitute a cause of action.
On the question of the capacity of the plaintiff to maintain the action, the defendants argued that this was the sort of action that could only be maintained by a public official charged with the duty of maintaining such actions.
On that question this court said:
“In view of all these precedents from our own reports, what is the correct answer to defendants’ contention that plaintiff has no right to invoke mandamus to redress his alleged grievance in being deprived of the privileges of the municipal swimming pool of the city of Newton? Has he stated any grievance redressable by mandamus which is peculiar to himself and not suffered by the public in general? The answer is not easy. The public in general is not deprived of the privileges of the swimming pool. According to the petition, however, it is alleged that all colored citizens of Newton are similarly deprived of the privileges of the swimming pool. Whether their number be many or few the pleadings do not show. However, the situation stated in the application for the writ would undoubtedly warrant the institution of some sort of action, mandamus, quo warranto, or injunction, by the public prosecutor; and we are not prepared to say that plaintiff can maintain this action on behalf of the group for which he pleads. But we think it clear that in the interests of justice and equity plaintiff is entitled to maintain the action in his own behalf.” (p. 480.)
Following that holding, this court overruled defendants’ motion to quash and gave the defendants thirty days in which to plead.
It will be seen that this holding was based on the proposition that the action was to be carried on in the interest of plaintiff solely as an individual and not as the representative of any class, group or race.
The defendants filed an answer in which they set out various defenses, among them being a general denial on the part of Hunt, and a general and specific denial on the part of the city. After the issues were made up the plaintiff filed a motion for judgment notwithstanding the answers. This motion was presented in Kern v. Newton City Commissioners, 151 Kan. 565, 100 P. 2d 709. Several defenses raised by the answer were disposed of favorably to the contention of the plaintiff. It appeared, however, that the plaintiff had alleged in his petition that he had presented himself and demanded to be admitted to the pool. The city specifically and Hunt by his general denial had denied this. This court pointed out that the only question to be litigated was the .question of the right of plaintiff to be admitted to the pool. Rights of the colored race in general can only be litigated in an action brought by the attorney general of the state or the county attorney of the proper county.
This court held that before a writ of mandamus could issue all the conditions precedent to the issuance of the writ must have been complied with, and since there was a denial that the plaintiff had presented himself and demanded that he be admitted to the pool this court would not issue a peremptory writ directing .that he be admitted. Accordingly a commissioner was appointed to hear evidence and make findings of fact and conclusions of law on the issues involved. The commissioner heard the evidence and filed a report wherein he has concluded that no cause of action was established against the defendants and that the peremptory writ should be denied. The plaintiff has filed a motion for judgment in his favor notwithstanding the report of the commissioner. The action was finally Submitted on that motion.
Prior to the taking of testimony before the commissioner, the defendants filed a supplemental answer wherein they alleged that the plaintiff at the times he presented himself for admission to the swimming pool was a person of ill repute and did not bear a good moral reputation and therefore was 'not entitled to the privileges of the municipal swimming pool.
The commissioner made various findings of fact, with which we are not concerned here, since they are not disputed. Finding of fact No. 4, however, was as follows:
“That at all times complained of herein, plaintiff was and, by his own deliberate acts, has proven himself to be a man of immoral character; that he had theretofore been guilty of a crime involving morals and moral turpitude and that such facts were of general knowledge to the inhabitants of the city of Newton, Kan., and were known by the defendants herein; and that the municipal swimming pool so conducted by the defendant, Harold S. Hunt, was a public place; and that no question of racial discretion is here involved.”
The commissioner made the following conclusions of law:
“1. That the city of Newton, Kan., or any lessee or agent thereof, in the management and operation of its municipal swimming pool has a right and the duty to bar therefrom any and all persons whose known character or reputation for morality is bad.
“2. That the defendant, Harold S. Hunt, has the legal right to deny plaintiff the right to swim in the Newton municipal swimming pool in the protection of the morals of the inhabitants of that city.
“3. That no cause of action having been established against the defendant, Harold S. Hunt, no cause is established against the defendants, the city commissioners of the city of Newton, Kan.”
The plaintiff asks that judgment be given him and a peremptory writ issued notwithstanding this report because the findings are not sustained by the evidence. The record discloses that the plaintiff had been charged by a young colored girl with being the father of her unborn child and that he had compromised this charge by a payment of money to the girl for support of the child. It also dis closed that plaintiff, a married man, had at different times entertained unmarried colored girls in his home and given them whisky.
Hunt, who was in charge of the pool, testified that in 1935 when plaintiff presented himself at the pool and demanded admittance it was after the pool had ceased operations for the day. Clearly there is a wide discretion vested in those operating pools of this kind when they shall be open to the public. Hunt also testified that in the early part of the summer of 1936 plaintiff appeared at the pool and applied for admission. Hunt testified that he refused to admit him at that time because he was known by him by general reputation as being a man of immoral character.
When this action was here the last time (See Kern v. Newton City Commissioners, 151 Kan. 565, 100 P. 2d 709, this court said:
“The city officials and Hunt are charged with the duty of maintaining order in this pool. It is a peculiar situation, since'more or less informality is the rule at such places. Mothers come there with small children and use the place as a playground. On this account there is a wide discretion vested in those in charge of such pools as to whether persons of a quarrelsome disposition or big boys known to be bullies or men or women known to be of immoral character generally should be admitted. This is true regardless of the color or race of the person excluded.” (p. 573.)
Under all the circumstances we have concluded that a peremptory writ should not issue directing the defendants to admit this plaintiff to the pool.
Judgment will be for the defendants. It is so ordered.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.:
This appeal involves the proper merit rating of an employer under our unemployment compensation law.
The employer, operator of a laundry, and his predecessor owner and operator, filed a petition in the district court to obtain a judicial review of the merit rating fixed for the present operator by the state labor commissioner. The purpose of such judicial review was to obtain the same merit rating which had been accorded to the predecessor owner and operator. Petitioners prevailed, and the commissioner has appealed.
Before we can consider the judgment of the district court on its merits we are confronted with a preliminary question touching the jurisdiction of the district court to entertain the petition for judicial review. The commissioner first appeared specially in the district court and moved to have the petition for judicial review dismissed upon the ground it was not filed in time-and that the district court was therefore without jurisdiction to entertain it. The motion was denied and the commissioner appeals also from that ruling.
The final decision of the commissioner was mailed to appellees on November 6, 1941, and the petition for judicial review was filed in the district court on November 12, 1941. Appellant contends the law allows only five days within which to file a petition for judicial review when the employer is notified by mail of the rate of compensation finally fixed by the commissioner. The pertinent part of chapter 264, § 7, (C) (7), Laws 1941, provides:
“The employer shall be promptly notified of the commissioner’s denial of his application, or of the commissioner’s redetermination, both of which shall become final unless within five days after the mailing of notice thereof to his last known address or in the absence of mailing, within fifteen days after the delivery of such notice, a petition for judicial review is filed in the district court of the county in which such employer resides, or has his principal place of business.” (G. S. 1941 Supp. 44-710 [C] [7].) (Emphasis supplied.)
Two points are involved with respect to the jurisdiction of the district court. One point is whether the five-day provision in the above section of the law can be impeached and the words “fifteen days” substituted therefor. The other point is whether the petition for judicial review was filed in time in the event it be determined the five-day provision cannot be disturbed.
The instant law originated in the senate and was Senate bill No. 366. Appellee first contends the original bill provided a fifteen-day notice in the event of mailing, as well as in the event of delivery of the notice, and that the five-day provision with respect to mailing was a typographical error which occurred in the process of engrossing the bill in the senate. Appellee also contends the petition for judicial review was filed in time under the five-day provision. Appellant denies the soundness of both contentions but does not argue extensively the jurisdictional question. It would appear that, by reason of other pending cases, appellant is probably more concerned with a decision on the merits of the case than with the jurisdictional question. Appellant has, however, squarely raised the jurisdictional issue and obviously we cannot ignore it. Moreover, the jurisdictional issue is of such wide general significance as to transcend in importance the merits of any one particular case.
We shall first consider the highly important subject of impeaching a statute. The abstract before us does not disclose what evidence was introduced on the hearing of the motion to dismiss the petition for judicial review. In the brief of appellee it is argued the legislative history of the bill shows the original senate bill contained the word “fifteen” with respect to the mailing provision, the same as it did with respect to the delivery provision and that, as previously stated, the typographical error occurred in connection with the engrossing of the bill in the senate, and that the same error appeared in the bill as printed for the house. Appellee claims the journals of the legislature fail to show the particular section of the bill here involved was ever amended. If appellee’s contention as to the legislative history of the bill is correct it follows that both the engrossed bill and the enrolled bill, containing the five-day provision with respect to mailing, is the bill that was voted upon and finally passed by both houses of the legislature and is the bill which was approved and signed by the governor. Do the facts with respect to the legislative history of the act, as asserted by appellee, constitute grounds for impeaching the enrolled bill? In the early case of In re Taylor, 60 Kan. 87, 55 Pac. 340, it was said:
“While the journals of the two houses may be examined for the purpose of ascertaining whether the legislative branch has expressed its will in accordance with constitutional requirements, yet a legislative measure which has taken upon itself all the forms and appearances of verity which are involved in its enrollment in the office of the secretary of state, its certification by the president of the senate and speaker of the house and its approval by the governor, may not be impeached by the legislative journals except when the proof furnished by them is "of the clearest, strongest and most undoubted character. This has been twice heretofore declared in the language now employed. (The State, ex rel., v. Francis, Treas., 26 Kan. 724; Homrighausen v. Knoche, 58 id. 646, 50 Pac. 879.)
“In the case first cited it' is said: ‘If there is any room to doubt what the journals of the legislature show; if they are merely silent or ambiguous; or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.’ ” (1. c. 92.)
In the later case of Belleville v. Wells, 74 Kan. 823, 88 Pac. 47, this court reviewed the earlier decision and stated:
“This court has laid down the rale that before an enrolled bill can be impeached successfully by the journals of the legislature the latter must show affirmatively, clearly, conclusively and beyond all doubt that the bill as enrolled was not the bill passed. (The State, ex rel., v. Francis, Treas., 26 Kan. 724; Weyand v. Stover, Treas., 35 Kan. 545, 11 Pac. 355; In re Vanderberg, Petitioner, &c., 28 Kan. 243; The State v. Andrews, 64 Kan. 474, 68 Pac. 668.) Also, that the records of the legislative journals import absolute verity, and are conclusive as to the facts therein affirmatively shown. (Division of Howard Co., 15 Kan. 194; County-seat of Linn Co,, 15 Kan. 500.)” (l. c. 824.)
Manifestly the legislative history, as asserted by appellee, affords no ground for impeaching the five-day provision in the instant statute. On the contrary, the legislative history of the bill affirmatively discloses that provision cannot be impeached. We shall briefly notice that history. The resolution which provided and established the rules of the 1941 senate discloses that bills are to be engrossed before the third reading (Rule 31) and that upon third reading the bill shall be read through by the secretary (Rule 37). (Eor statutory provisions pertaining to engrossing of bills see G. S. 1935, 45-110, 45-111.) The senate journal discloses the report of the chairman of the engrossing committee, which was made before the third reading of the bill. (Senate Journal, p. 386.) His report was:
“Mr. President: Your Committee on Engrossed Bills, to whom was referred Senate bill No. 366, have compared the engrossed copy with the original bill, and instruct me to report the bill back to the Senate correctly engrossed.
“March 21, 1941.
M. V. B. Van De Mark, Chairman.”
Thereafter, and on the same day, the bill was called for third reading and was passed in the senate (Senate Journal, p. 388). In the house the bill was referred to the committee on state affairs and that committee, through its chairman, Blake A. Williamson, reported the committee had considered the bill and that it recommended its passage (House Journal, p. 528). In the house there were some amendments to parts of the bill. Later the bill was placed on third reading and was passed by the house with the five-day mailing provision now contained in the law. After both houses had passed the bill it was duly enrolled. (For statutory provisions pertaining to enrollment of bills by printing in the office of the state printer, see G. S. 1935, 45-113.) Thereafter the bill, with the five-day mailing provision, was approved and signed by the governor. It follows the five-day mailing provision now contained in the bill was passed by both houses of the legislature and was duly approved and signed by the governor.
Appellee nevertheless urges we should make the substitution of the words “fifteen days” for the words “five days” with respect to the mailing provision. In support of that contention he cites Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689, where it was held:
“Application, of the familiar rule of statutory construction that where the legislature erroneously uses one word or figure for another and the context affords the means of determining conclusively the legislative intent, the proper word or figure will be deemed substituted therefor.” (Syl. ¶ 1.) (Emphasis supplied.)
The principle stated in the Coney case constitutes sound doctrine and we would do nothing to weaken its effect. Reference was there made in one portion of the act to section 3 of the same act, which latter section had no relation whatsoever to the subject at hand. It was perfectly obvious from the context of the act that reference should have been made to section 5, which was the only section in the act to which the reference could apply. The legislative intent was thus conclusively apparent from the context of the act itself and it was wholly unnecessary to examine the legislative history of the act in order to ascertain the legislative intent. That is not the situation in the instant case. Here the legislature provided two methods whereby an employer might be notified of the commissioner’s final decision with respect to merit rating. The length of time within which a petition for judicial review was required to be filed was not the same under the two methods prescribed. The wisdom or lack of wisdom involved in the distinction is solely a matter of legislative concern (Hunt v. Eddy, 150 Kan. 1, 4, 90 P. 2d 747).
Was the petition for judicial review filed in time? It is conceded the commissioner mailed the notice of his final decision on November 6, 1941, and that the petition for review was not filed until November 12, 1941. The last of the five days after November 6 was November 11, and the petition was not filed until the sixth day. Ap pellee undertakes to excuse his delay on the ground the fifth day, namely November 11, was Armistice Day, a legal holiday (G. S. 1935, 35-106). The unemployment compensation law is complete within itself and provides its own procedure. (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550; Craig v. Kansas State Labor Commissioner, 154 Kan. 690, 121 P. 2d 203.) The act in question makes no exception as to the time within which a petition for judicial review must be filed when the last day falls on a holiday. In that respect it is unlike the civil code. The latter code, which prescribes a method for computing the time within which an act is to be done, expressly provides that if the last day be Sunday, it shall be excluded in the computation (G. S. 1935, 60-3819). In the instant case the last day did not fall on Sunday and we are not required to decide whether the general rule of computation would be applicable if the fifth day had fallen on Sunday. Failure of the unemployment compensation law to provide for the exclusion of Sunday or other holidays in the computation of time where the last day falls on a holiday may have been an oversight on the part of the lawmakers and, if so, the law easily can be amended. That, however, is a legislative and not a judicial function. It follows it was the duty of appellee to see that his petition was filed within the time prescribed by the unemployment compensation law.
The opinion might well end here. It, however, may be well to clarify a misconception concerning appellee’s right to file the petition for review on Armistice Day. It is true Armistice Day is a legal holiday, G. S. 1935, 35-106, but that statute in nowise prohibits any court or officer from acting on that day. In Canaday v. Scott County, 104 Kan. 785, 181 Pac. 121, it was said:
“The plaintiffs contend that the action of the board of county commissioners was void for the reason that the board first acted on the petition on a legal holiday, labor day. This contention is based on the assumption that courts and officers cannot legally act on that day. The assumption is unwarranted. The designation by statute of a day as a legal holiday does not invalidate official or judicial acts performed on that day, unless the statute expressly or by clear implication prohibits the performance of those' acts. (Note, 19 L. R. A. 320; Note, 10 L. R. A., n. s., 791; Note, Ann. Cas. 1916 E, 847 ; 21 Cyc. 440, 445; Selders v. Boyle, 5 Kan. App. 451.) The statute making the first Monday in September a legal holiday neither expressly nor impliedly prohibits any court or officer from acting on that day.” (l. c. 787.)
In Tully v. Grand Island Telephone Co., 87 Neb. 822, 128 N. W. 508, it was held:
“The clerk of a district court has authority to receive and file a motion for a new trial on May 30.
“The court will not presume that the clerk’s office was closed during May 30, nor assume that, because the last day within which a motion for a new trial might be filed fell upon Memorial day, the defeated litigant was unavoidably prevented from' filing its motion within the time prescribed by law.” (Syl. 1U 1, 2.)
In 29 C. J. the rule is stated as follows:
“As in the case of other transactions the validity vel non of official acts performed on a legal holiday depends on the terms of the statute. The mere designation of a day as a holiday does not invalidate a sheriff’s sale, or a sale for taxes, or an order adjourning the sale made on such day. Indeed statutes having for their object the' suspension of official transactions on holidays will be construed as prohibiting only such acts as are in express terms or by clear implication prescribed.” (l. c. 767.)
See, also, 29 C. J. 762, 763, §§ 3, 5*
From the foregoing authorities it is well established there is nothing in the law which precluded the filing of the petition on Tuesday, November 11, and there is nothing in the record which discloses an unsuccessful attempt by appellee to file the petition on that day.
It should also be borne in mind that this court, like other courts, has definitely distinguished between statutes which provide that an act is to be done within a specified number of days and statutes which provide that at least a certain number of days should intervene between dates or acts. In the last class of cases the words “at least” have been interpreted to mean clear days. Clear days are not intended where the word “within” is used. (See Boring v. Boring, 155 Kan. 99, 122 P. 2d 743, in which the various classes of cases, both old and recent, were analyzed.)
Furthermore, as previously stated, we have here a law which is complete within itself and provides its own precedure. It employs the word “within” and makes no provision for excluding in the computation of time any holiday whether intervening between secular days or whether the last of the five days falls on a holiday. A general rule for computation of time is not based upon any theory of right, but is merely designed to promote definiteness and clarity with respect to computation. That the general rule for computation of time already has become complicated was again clearly demonstrated in the Boring case, supra. For courts to read further exceptions into the general rule would complicate the rule even more. We think it safer and a far better practice to permit the legislature to amend the provisions of a particular act such as the unemployment compensation law in the manner the legislature desires.
The order overruling the motion to dismiss the petition on the ground the district court was without jurisdiction to entertain it is reversed. Manifestly, since the district court lacked jurisdiction to pass on the merits of the question presented, that subject is not here for appellate review.
The action is remanded with directions to dismiss the petition.
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The opinion of the court was delivered by
Allen, J.:
This was an action to foreclose a mortgage. The facts are undisputed. The Federal Land Bank of Wichita, as plaintiff, brought this action to foreclose its first mortgage. The mortgagors, Luther H. Shoemaker and Cora M. Shoemaker, his wife, the appellant, Federal Farm Mortgage Corporation, second mortgagee, and the present owners of the property, Ray C. Sloan and Marie Sloan, his wife, were named as parties defendant. All of the defendants except the appellant defaulted in the case. The appellant filed an answer to the plaintiff’s petition admitting the existence and priority of the first mortgage lien, and also filed a cross petition. The appellant’s cross petition set up the note and second mortgage owned by it and prayed for personal judgment against its codefendants, the original mortgagors, Luther H. Shoemaker and Cora M. Shoemaker, his wife, for the amount of the indebtedness secured by the second mortgage, and further prayed that it be adjudged and decreed to have a lien upon the mortgaged premises subject only to the prior lien of the plaintiff and that in the event the property was sold in satisfaction of the indebtedness due the plaintiff that the appellant be adjudged and decreed to have all of the rights of redemption provided by law for a junior lienholder. The appellant did not ask for the foreclosure of its second mortgage nor for any relief thereon except as above stated.
The court granted the plaintiff a personal judgment against the mortgagors, Luther H. Shoemaker and Cora M. Shoemaker, his wife, for the amount of plaintiff’s indebtedness and a further judgment foreclosing the plaintiff’s first mortgage. In considering the cross petition of the appellant, the court granted the appellant a personal judgment against the mortgagors, Luther H. Shoemaker and Cora M. Shoemaker, his wife, but refused to grant the appellant any relief on its second mortgage, and ruled that by failing to ask for the foreclosure of its second mortgage, the appellant had waived all its rights under the mortgage, and therefore, could not be adjudged to have a lien on the property or any right of redemption if the property was sold to satisfy the first mortgage. Over the objection of the appellant, the court struck from the journal entry submitted to it the finding which the appellant had incorporated therein concerning the existence and validity of its second mortgage lien., The court further found that the mortgagors, Luther H. Shoemaker and Cora M. Shoemaker, his wife, against whom the-personal judgments were entered, had conveyed the mortgaged real estate to the defendant, Ray C. Sloan, prior to the filing of the foreclosure suit, and that the said judgment debtors, Luther H. Shoemaker and Cora M. Shoemaker, his. wife, now have no right, title, or interest in and to the real estate involved.
Appellant filed a motion for a new trial, which was overruled by the court. This appeal followed.
Under the facts stated, was the lien of appellant extinguished?
In our recent case of Federal Farm Mortgage Corp. v. Crane, 153 Kan. 114, 109 P. 2d 82, it was held, as stated in the syllabus:
“In a foreclosure proceeding the holder of a junior mortgage on the same land was joined as a defendant. The junior mortgagee entered a general appearance in such foreclosure action, but' filed no answer and asked for no affirmative relief. In the circumstances stated it is held that the lien of the junior mortgagee was waived and that it has no right of redemption under the statute.”
In the Crane case we followed Moore v. McPherson, 106 Kan. 268, 187 Pac. 884, where it was ruled:
“Under section 497 of the civil code there can be but one foreclosure sale of mortgaged property, no matter how many mortgages encumber that property; and the only way that a junior mortgagee who has been impleaded can protect his interest is by seeing to it that the property, when sold, brings somewhere near what it is worth, or enough to satisfy his second lien.”
In Lauriat v. Stratton, 11 Fed. 107, quoted with approval in the Crane case, it was stated:
“The policy of the statute is to make the property pay the debts of the owner as far as possible. To this end it is provided that as to all the creditors who are parties to the decree, the property shall be absolutely disposed of at one sale to the highest bidder upon an execution, which is, in legal intendment and effect, the process of all of them. . . . The right of redemption is only given as a protection against a sale to which the redemptioner is not a party, and therefore cannot control, but which may result to his injury.” (pp. 112, 113.)
In entering judgment in the case before us, the court stated:
“But this is a different situation; in this case, the Federal Farm Mortgage Corporation files its answer and asks for judgment on their note and asks to let their mortgage be declared to be a lien, subject only to the superior lien of the Federal Land Bank. They don’t ask for the foreclosure of the mortgage or for any sale thereunder. In case of redemption during the exclusion period by the debtors, to wit, during the first twelve months after the sale, he is confronted with this situation: If he cares to secure another loan, he finds that the Federal Farm Mortgage Corporation has a lien by reason of the judge’s orders, which is subject only and inferior to the lien of the Federal Land Bank. It has not been foreclosed. But one who is being interviewed for the purpose of refinancing the loan is confronted with this situation: He is reluctant to engage in any such procedure, which might cause him to buy a lawsuit by reason of his loan. The purpose of the redemption law is defeated. The intention of the legislature is circumvented. And it is this situation that the court has consistently refused to recognize.
“If the defendant Farm Mortgage Corporation had a lien, they had a right to foreclose it. They were a party to the suit. Having not elected to foreclose the lien, they can have no remedy of any kind with reference to said lien. They have simply taken a judgment' on their note and they are in the same category as any other judgment creditor. Their position would not be in anywise different.”
See note by Prager on “Junior lienholders and mortgage foreclosures,” Journal Bar Ass’n of Kansas, Vol. 10, p. 412.
As appellant elected not to foreclose its lien, we think the lien was extinguished. The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment affirming an order of the state commission of revenue and taxation denying plaintiff’s claim to a deduction from its income tax assessment for 1937 a considerable sum of money which it paid as interest on that portion of its bonded indebtedness held by its stockholders.
The legal questions were developed by the pleadings and a lengthy stipulation of facts. Plaintiff is a Delaware corporation engaged in the transportation of natural gas to distributors and customers in Kansas and by pipe lines through Kansas into Nebraska, Iowa and Illinois. Its business is exclusively interstate. In 1938 it filed with the Kansas state tax commission a tentative income tax return for the calendar year 1937, and paid thereon $13,394.56" as the allegedly correct amount of the state income tax due on the Kansas allocation of its interstate business.
Sometime later plaintiff was notified by the state tax commission that there was an additional liability of $11,337.28 due the state of Kansas, predicated on an illegal deduction of the amount plaintiff had paid to its stockholders as interest on that part of its bonded debt held by them.
In correspondence between the commission and the taxpayer and on hearings before the commission the facts concerning the origin of that bonded debt were developed without dispute. It appears that plaintiff was organized in 1930 and granted a certificate to do business in Kansas the same year. The requisite money for acquiring rights of way, constructing its pipe lines and facilities, and acquiring leaseholds for an adequate supply of natural gas, and for miscellaneous expenditures incidental to the inception of its corporate business, was raised by the sale of 1,499,000 shares of no par value stock and by issuing promissory notes bearing 8-percent interest. The stockholders of the company furnished the money and received these notes which had an aggregate face value of $56,412,-236.88; and when interest thereon had accrued to the amount of $2,709,550.84, plaintiff issued to the stockholder-owners of the notes 1,499,000 additional shares of its treasury stock and $60,000,000 of its so-called gold bonds secured by a mortgage on its corporate properties. In exchange therefor the stockholder-owners of the 8-percent promissory notes surrendered them to the plaintiff.
The stock of the plaintiff corporation is largely held by a group of affiliated corporations, and 73.36979 percent of the plaintiff’s bond issue is likewise held by them. The remainder of plaintiff’s outstanding bond issue, 26.63021 percent, is held by outside investors.
The question of present concern is whether the annual interest which plaintiff pays to its stockholder-owners of 73.36979 percent of its bond issue is a proper deduction in computing plaintiff’s proportionate net income attributable to its Kansas business under our state income tax statute. So far as here pertinent that statute reads:
“In computing net income there shall be allowed as deductions:
“(1) All the ordinary and necessary expenses paid during the taxable year in carrying on any trade or business;
“(2) All interest paid during the taxable year on indebtedness, except . . . interest paid to stockholders or shareholders, or members of their immediate families unless the interest was paid on money actually borrowed for ordinary expenditures for actually carrying on the business of the corporation; . .
(G. S. 1941 Supp. 79-3206.)
The pertinent administrative regulation promulgated by the state commission of revenue and'taxation states the same rule thus:
“Article 42: Interest. Interest paid to stockholders, 'shareholders, etc., is deductible only if the interest was paid on money actually borrowed for ordinary expenditures for actually carrying on the business of the corporation.
“Interest paid to stockholders or shareholders on money borrowed for current financing to supply the current working capital of the corporation is deductible. Interest paid to stockholders on money borrowed or used for capital expenditures to -supply the fixed assets or fixed capital of the corporation is not deductible.”
The trial court sustained the position taken by the defendant commission, and the controversy is brought here for review. Plaintiff makes two contentions, first, that the statute correctly construed authorizes the deduction of the interest paid to plaintiff’s stockholder-owners of 73.36979 percent of its bonded indebtedness; and second, if the statute correctly construed disallows such deduction in computing its net income attributable to plaintiff’s corporate business in Kansas it is unconstitutional under the fourteenth, amendment, and article XI, section 1, of the state constitution.
Plaintiff assails the position of the defendant commission and the trial court that the money originally borrowed by the corporation on its 8-percent promissory notes which were refinanced by its issue of gold bonds in exchange therefor was an expenditure of a capital nature. It asserts that it was simply “money actually borrowed for ordinary expenditures for actually carrying on the business of the corporation” within the precise t'ext of the statute. In support of that contention counsel for plaintiff invite us to consider critically the term “expenditures” as it appears in the statute under discussion; and certain textbooks on auditing and accounting do appear to differentiate between the terms “expenditures” and “expenses.” We shall not cavil about such niceties, however, preferring as we do to rely on the time-tried authorities which have served us well in not dissimilar controversies. In Black’s Law Diet., 3d ed., 724; 15 Words & Phrases, Perm, ed., 673, 689; Webster’s New International Diet. 2d ed., and Soule’s Diet, of Synonyms, p. 197, the words “expenditures” and “expenses” are defined as synonymous terms. Both words mean an outlay of money and they will be so regarded in the case at bar. (Wisconsin v. J. C. Penney Co., 311 U. S. 435, 443, 444, 130 A. L. R. 1229, 1232, 1233.)
Touching the contention that the company’s original issue of 8-percent promissory notes which were refinanced into its 6-percent gold bonds was given for “money actually borrowed for ordinary expenditures for actually carrying on the business of the corporation,” we think that contention untenable. Money expended to set on foot the business of an interstate gas distributing company—its acquisition of rights of way, laying of pipe lines, construction of compressor stations, procuring large areas of gas-producing leaseholds, and all the miscellaneous expenditures incidental to the inception of the corporation as a going concern—are not ordinary expenditures of the corporation for which deduction is allowed in the income-tax statute. They are capital expenditures, which once made do not ordinarily recur. They do not have to be repeated from year to year as ordinary outlays of money for actually carrying on the business of the corporation.
In Black on Income and other Federal Taxes, 4th ed., section 138, it is said:
“In computing allowable deductions, a distinction is to be made between expenditures which are in the nature of an investment of capital assets and those which are properly described as current expenses. Thus, in the case of a manufacturing establishment, the purchase and renewal of the machinery necessary for the operation of the plant would be regarded as an investment of capital, and could not be deducted as an item of expense. ... On the other hand, where a plantation is set out with rubber trees, some of which have reached the age of producing, but others not, the expense of cultivating, weeding, and caring for those portions of the estate not yet in bearing is a proper deduction, and as it is an annually recurring expense, it is prima facie not capital expenditure, but income expenditure, and so deductible.”
And in section 140 of the same work it is said:
“Any and all expenses incidental to or connected with the selling of the capital stock (common or preferred) of a corporation for the purpose of raising capital to be by it invested in property or employed in the business for which the corporation is organized are not an ‘expense of operation and maintenance’ within the meaning of this title, and such expense is not an allowable deduction from the gross income, for the reason that such an expense is incurred in a capital transaction; that is, the raising of capital to be invested or employed in the business.”
See, also, Hubinger v. Commissioner of Internal Revenue, 36 F. 2d 724, syl. ¶ 2; Parkersburg Iron & Steel Co. v. Burnet, 48 F. 2d 163; Paton’s Accountants’ Handbook, 2d ed. 1099 et seq.
Plaintiff’s next contention is that as interpreted by the defendant commission and by the trial court the statutory provision which forbids a deduction from its income tax assessment for the interest paid on that part of its bonded debt owned by its stockholders is a denial of the equal protection of the law guaranteed by the fourteenth amendment. In support of this argument plaintiff cites familiar cases which hold that classifications therein must rest on some fair and substantial basis, and that classifications 'which ignore these principles will receive no judicial countenance. Among the cases cited is Mount Hope Cemetery v. Pleasant, 139 Kan. 417, 32 P. 2d 500, where this court rejected a theory of exemption based on distinctions of ownership. Critically examined, that case bears no substantial analogy to the case at bar. Exemption of cemeteries from taxation was based on a legislative theory of public policy, and we merely held that such legislative policy was not affected by the fact that in some instances the title to the cemetery lands was vested in a corporation, and in others such lands were held in individual ownership. We say that this cemetery case is not analogous, and yet it may be helpful in one respect. A matter of justifiable public policy prompted the legislature to exempt cemetery lands from taxation. The legislature has the paramount authority to promulgate the public policy of this state in matters of taxation as in all others. (State v. Mercantile Co., 103 Kan. 733, 176 Pac. 321; Dunn v. Jones, 143 Kan. 771, 57 P. 2d 16; Hunt v. Eddy, 150 Kan. 1, 90 P. 2d 747; 50 C. J. 857-859; 6 R. C. L. 709, 710.) Public policy prompted the enactment of the recent amendment to the statute with which we are presently concerned. The state tax commission in its 15th biennial report to the governor in 1936, dated January 12, 1937, said:
“The original Kansas income-tax act was as nearly like the federal revenue act of 1932 as possible. In the legislative session of 1935 the Kansas income-tax law was amended to conform with changes made in the federal law by the revenue act of 1934. Since' that time the federal law has been amended by the revenue act of 1936 and, in the opinion of this commission, the Kansas law should be amended to make it as nearly like the federal law as possible. The policy of continuing the Kansas law as nearly like the federal law as possible will permit taxpayers to prepare their state income-tax return from the figures assembled for their federal return. . . . The principal amendments suggested are as follows:
“2. Many corporations have avoided income tax by giving their stockholders interest-bearing notes in exchange for preferred stock. Section 6 (a) (2) should be amended to limit the deduction for interest paid to persons other than stockholders.” (pp. 15, 16.)
In conformity with this recommendation the legislature enacted the amendment to the statute under present consideration. (Laws 1937, ch. 370, § 2, G. S. 1941 Supp. 79-3206.)
The state of New York has a substantially similar statute, part of which reads:
“The term ‘entire net income’ means total net income from all sources, without deduction of . . . (6) interest on indebtedness to stockholders or shareholders, or members of their immediate families, except interest on moneys borrowed for ordinary expenses of the corporation. . . .” (Laws of New York of 1935, vol. 2, ch. 745, § 14, subparagraph 3 [6].)
In a proceeding to review a determination of the New York state tax commission which had applied the statutory rule just quoted, the appellate division sustained the constitutionality of the statute (People, ex rel. Retsoff Mining Co., v. Graves et al., 7 N. Y. S. 2d 769), and the United States supreme court dismissed the appeal (308 U. S. 503-504) “for want of a substantial federal question,” citing Anderson v. Forty-Two Broadway Co., 239 U. S. 69, 72-73; Denman v. Slayton, 282 U. S. 514, 519, 520.
In Application of Market & Hammacher Co., 16 N. Y. S. 2d 774, the same provision of the New York income-tax statute came before the appellate division, and in discussing it the court said:
“The petitioner herein endeavors to distinguish the instant case from the circumstances of the Retsoff case by questioning the language of the statute as it refers to ‘members of their [stockholders] immediate families.’ . . . The provision was inserted to prevent deliberate tax evasion. It, is possible that the phraseology may be somewhat vague in an academic sense. However, the very circumstances exist here which the law seeks to cover, to wit: to prevent corporations and stockholders to pass rights to interest or indebtedness to wives and other relatives and by such devious routes to circumvent the question of the tax laws. The large proportion of persons to whom interest was paid by the petitioner corporation herein was readily definable as members of ‘immediate families’ of holders of the stock of this corporation. Payment of this interest was properly not allowed as a deduction from gross income.” (p. 775.)
Another case reaffirming the validity of the New York statute was People, ex rel. Glauber, Inc., v. Graves et al., 258 App. Div. 1006, 16 N. Y. S. 2d 754. The New York statute was amended in Laws of 1938, chapter 201, and again in Laws of 1939, chapter 675, but not in any material respect of present concern.
The Oklahoma income-tax statute deals with the subject of deductions for interest paid to corporations or persons interested in the tax-paying corporation, in part, thus:
“In no case shall a deduction for interest accrued or paid to a controlling or affiliated corporation be allowed in an amount greater than three (3%) per centum of the debtor corporation’s outstanding capital stock which has been issued for money, or money’s worth in property. The above limitation shall likewise apply to indebtedness owed to any other person owning, directly or indirectly, more than fifty (50%) per centum of the outstanding voting stock of such debtor corporation:” (Okla. Stats. 1941, Title 68, § 880 [b].)
Various features of this statute have withstood challenge of their constitutionality. (Tradesmen’s Bank v. Tax Comm’n, 185 Okla. 656, 95 P. 2d 121, affirmed 309 U. S. 560; Green v. Oklahoma Tax Com., 188 Okla. 168, 107 P. 2d 180; Lawyers Lead & Zinc Co. v. Oklahoma Tax Commission, 188 Okla. 590, 111 P. 2d 1085.) While these decisions are not strictly analogous, they did present the question we have to consider in the case at bar concerning discriminations which the legislature may lawfully make in respect to income-tax deductions. No better statement of the legislature’s broad discretion in respect to such questions can be found than in Carmichael v. Southern Coal Co., 301 U. S. 495, 509, 510, 109 A. L. R. 1327, where-Mr. Justice Stone, now chief justice, speaking for a majority of the court, said:
“A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it. (Citations.)
“This restriction upon the judicial function, in passing on the constitutionality of statutes, is not artificial or irrational. A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the constitution. In the nature of the case it cannot record a complete catalogue of the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.”
Not to extend this opinion unduly, after careful consideration of appellant’s brief and argument and the authorities urged in its behalf, we feel bound to hold that the challenged statute does not infringe any provision of the fourteenth amendment.
On the point that the statute violates section 1 of article XI of the state constitution, we cannot concede that section 1 of article XI is all the constitutional law that bears on the subject. Section 2 of the same article also has the more important bearing on the point. While section 1 provides for a uniform and equal rate of taxation, section 2 is the one which particularly concerns itself with the power of the state to levy and collect taxes on incomes; and in respect to income-tax deductions which may be allowed and which may be forbidden, the legislature has plenary power to deal with the subject. As was said by the supreme court of Missouri, in St. Louis Union Trust Co. v. State, (Mo.) 155 S. W. 2d 107, “Not discrimination as such but only unreasonable and arbitrary discriminations are prohibited by state and federal constitutions.” (Syl. ¶ 3.)
The judgment is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
This was an action to recover on a judgment for child support rendered in a divorce action in Missouri. The plaintiff filed a motion for judgment on the pleadings, for the total amount of the weekly installments unpaid during the five-year period immediately prior to the filing of the action. From an order sustaining this motion the defendant appeals. The question is whether recovery was barred by the statute of limitations.
Brief statement of the facts will suffice. Velma Mae Kleitz was granted a divorce from Carl L. Kleitz in Jackson county, Missouri, on September 15, 1933, both parties then being residents of that county. The plaintiff was awarded the custody of a minor child, then five years of age, and the defendant ordered to pay ten dollars a week for the support of the child until further order of the court. The defendant sometime thereafter became a resident of Wyandotte county, Kansas, and on January 4, .1941, the plaintiff, who had remarried, brought action in that county to collect the unpaid installments for child' support. In her amended petition she pleaded the Missouri judgment, the provisions of the Missouri divorce statutes relative to custody and maintenance of children, and certain decisions of the supreme court of Missouri relative to the vested right of a wife in accrued installments of alimony, even though she has remarried before the installments had accrued. Upon motion- of the defendant, all installments which had accrued prior to five years before the filing of the petition were stricken out. The defendant then answered alleging that no installment payments had been made for more than five years prior to the filing of the petition, pleading that under Missouri law as interpreted by the supereme court of Missouri the statute of limitations began to run on' all installments on September 15, 1933, the day the judgment was rendered, and that recovery was therefore barred, as to all installments, under the Kansas five-year statute of limitations (G. S. 1935, 60-306). Plaintiff then filed a motion for judgment upon the pleadings, which motion was sustained and judgment rendered for the plaintiff in the sum of $2,600, representing the total amount of the installments accrued and unpaid during the five-year period prior to the filing of the petition.. This appeal followed.
■The issue here narrows to the one question as to when our statute of limitations started to run on the unpaid installments falling due within the five-year period preceding the filing of the petition. No installments due and unpaid for more than five -years are involved, and under the pleadings there is no attempt to collect them. There is no question that under our decisions, as applied to judgments for child support in this state, the statute of limitations begins to run on installments only from the date when they become due and are unpaid. (McGill v. McGill, 101 Kan. 324, 166 Pac. 501; Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561; McKee v. McKee, 154 Kan. 340, 118 P. 2d 544.) Under our statute, the period of limitation starts to run when “the cause of action shall have accrued” and obviously no cause of action arises to collect an installment until such installment is due. But appellant contends that under Missouri law and decisions the statute starts to run on installment payments on the day the judgment is entered and not at the later dates when the installments become due, and that the Missouri law rather than the Kansas law should here be applied in determining when the statute started to run. But after applying the Missouri law and thereby holding that the statute started to run on the installments in question as of the date of the original judgment, appellant then desires to have the Kansas law rather than the Missouri law applied in determining the period of limitation. In other words, he desires to have the Missouri law applied where it would help him and disregarded where it would hurt him. He does not deny that even if it be held that the statute started to run on the date the judgment was entered, as to all installments falling due in the future, recovery in this case would still not be barred under Missouri law. He admits that action may be brought in Missouri to enforce the Missouri judgment at any time within ten years after the judgment was entered. The instant action was brought about seven years after the judgment. But appellant urges that we should now forget the Missouri law and apply the Kansas law which bars recovery upon foreign judgments after five years (G. S. 1935, 60-306 16]). He desires to “eat his cake and have it too.” .
The general rule is that in respect to the limitation of actions the law of the forum governs, and if any exceptions to this rule are to be recognized, such exceptions must be found in the law of the forum itself. (37 C. J. 729; 34 Am. Jur. p. 51; Nickel v. Vogel, 76 Kan. 625, 635, 92 Pac. 1105; Good v. Kleinhammer, 122 Kan. 105, 108, 251 Pac. 405; Newell v. Harrison Engineering & Const. Corp., 149 Kan. 838, 89 P. 2d 869.) Our statute contains one modification of the rule, in a provision that if the cause of action arose in another state between nonresidents of this state and recovery is barred under the laws of that state, no action thereon can be maintained in this state (G. S. 1935, 60-310; Nickel v. Vogel, supra). In other words, in such a case the Kansas period of limitation will be applied unless the law of the foreign jurisdiction provides a lesser period, in which event such lesser period will be applied to bar recovery. To put it still another way, where recovery is barred in the other state, no action can be maintained in this state even though recovery would not be barred here if the cause of action had arisen in this state.
As already stated, recovery in this case is not barred under Missouri law. Nor is it barred under our law because the statute did not start to run on any installments until they were in default and had not run on any installments falling due within five years prior to commencement of the action.
The judgment is affirmed.
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.The opinion of the court was delivered by
Smith, J.:
This was an action for the specific performance of an oral contract whereby it was alleged that the decedent had agreed to convey or bequeath certain real estate. After the issues were made up, judgment was given for the defendant on her motion for judgment on the pleadings. The plaintiff has appealed.
The petition alleged the death of one Patrick Hickey and that the defendant was the administratrix of his estate and only heir at law; that he had been engaged in the hardware business for some years before his death and owned considerable real estate in Geary and adjoining counties; that his wife was a sister of plaintiff; that defendant was the adopted daughter of Hickey and his wife and that plaintiff, and Hickey had for many years previous been partners in the hardware business. The petition then alleged that Hickey owned certain described real estate in Junction City at the time of his death; that his wife died before he did; that shortly after the death of 'Hickey’s wife plaintiff and Hickey entered into an agreement by the terms of which plaintiff agreed to stay with Hickey and carry the principal burden of conducting the partnership business and help Hickey with his private business affairs whenever called upon to do so and in consideration therefor plaintiff was to receive the real estate described at Hickey’s death; that thereafter Hickey left the partnership affairs more and more in the hands of plaintiff and absented himself from the store for a considerable portion of the time; that plaintiff, helped Hickey collect his rents and pay his bills, caring for Hickey and helping him with his business affairs and he continued to pay Hickey his share of the profits of the business; that he received no other compensation whatever from Hickey, but Hickey frequently told him his reward for the loyalty with which he operated the store was to be this particular piece of property; that plaintiff faithfully and completely performed the contract on his part, bub that Hickey died on the 11th day of September, 1940, without conveying or devising the real estate.
The prayer was for a specific performance of the contract and such other relief as the court might deem just and equitable.
On motion of the defendant the court struck from the petition the allegations as to the relationship of the parties, that is, that the wife of Hickey was a sister of plaintiff and that Hickey and his wife had adopted the defendant; also the allegation that Hickey frequently talked with plaintiff during the years that the contract was being carried out and told him his reward would be the property. An amended petition was filed substantially the same as the original petition with the exception of the above allegations.
The answer admitted the defendant was the administratrix and heir at law of the estate of Patrick M. Hickey, deceased; that Hickey and plaintiff had been partners in the hardware business; that Hickey had owned the real estate in question. There was a denial of the rest of the petition. There was also an allegation that the district court had no jurisdiction qf the case, but that whatever claim plaintiff had against defendant was within the jurisdiction of the probate court of Geary county. The answer further alleged that subsequent to the death of Hickey and with full knowledge of all claims which he had plaintiff paid rent at the regular rate to defendant as the administratix of the estate for four months; that defendant at that time was and had been in possession of the real estate, and plaintiff had been her tenant from month to month, and by reason of this tenancy plaintiff was estopped to claim title adversely to defendant. The answer also alleged that plaintiff was further estopped to claim that an oral contract was ever made and carried out for him because after the death of Hickey plaintiff often saw defendant and had opportunity to inform her of the alleged contract, but never did so until shortly before this suit was filed, and had paid the rent mentioned knowing that plaintiff as administratrix was charged with it on her bond and was incurring the expense of inventorying the estate. The answer alleged that plaintiff had failed and refused to pay defendant the rent due from February 1, 1941, to the time of the filing of the suit, which amounted to $600. The answer prayed that plaintiff take nothing by the action and that defendant have judgment against him for $600 as administratrix.
The plaintiff filed a reply wherein he admitted that he had made the rental payment, but alleged that under the arrangement he had with Hickey the hardware firm had paid rent to Hickey in the sum of $75 per month, but plaintiff believed that Hickey left some instrument among his effects carrying out the agreement alleged in his petition, and that when the instrument was discovered defendant would present him with it and there would be no controversy. The reply also alleged that Hickey was a man of large affairs and that on account of the relationship of the parties plaintiff considered it improper to raise the question until defendant had reasonable opportunity to get into the affairs of the estate and that plaintiff did not intend to recognize the title of defendant but only delayed asserting his claim for the reasons given.
The defendant filed a motion to strike certain portions of the ■plaintiff’s reply. This motion was overruled. Defendant then filed a motion for judgment on the pleadings in favor of the defendant individually and for her costs and for $616 as administratrix. This motion was sustained by the court and judgment was given accordingly. The plaintiff has appealed.
. The plaintiff argues that the court erred in sustaining defendant’s motion to strike. The allegations that were stricken have no bearing on the questions with which this court is dealing and no further attention need be given to this argument. ' ■
The plaintiff points out that it was argued in the trial court that proper jurisdiction was in the probate court and not in the district court. Plaintiff meets this argument with the citation of Dent v. Morton, 148 Kan. 97, 79 P. 2d 875. There this court sáid:
“The district court is the proper forum and has jurisdiction of an action for specific performance of a contract with a person since deceased, in which it was alleged the promisee was to receive real and personal property in consideration of certain services as set out in the petition, which shows on its face that equitable considerations enter into a determination of the matter.” (Syl. f[ 1.)
A motion for judgment on the pleadings is tantamount to a demurrer. (See Russell v. Bovard, 153 Kan. 729, 113 P. 2d 1064; School District v. Community High School, 146 Kan. 380, 69 P. 2d 1102.) The demurrer searches the record. (See Burris v. Burris, 340 Kan. 208, 34 P. 2d 127.) This motion for judgment on the pleadings was filed by the defendant. Hence our attention is directed to the petition. We must examine it as to its sufficiency. A petition is demurrable, among other things, if it appears on its face that the trial court has no jurisdiction of the subject matter of the action. (See G. S. 1935, 60-705.) Does such appear on the face of the petition here?
According to the petition there was an oral contract between plaintiff and decedent' whereby plaintiff was to perform services and in return plaintiff was to receive a particular piece of real estate at the death of the decedent. He did perform the services and decedent neither conveyed it to him before the death of decedent nor left it to him by will. The estate was being administered in the probate court at the time the action was commenced and the real estate in question was a part of the estate of the decedent.
The situation in all its essential details was substantially the same as this court considered in Foss v. Wiles, ante, p. 262, 124 P. 2d 438. That was an action in district court to compel specific performance of an oral contract whereby it was alleged the decedent had agreed to leave all his real estate to the plaintiff in consideration of services. The estate was in the process-of administration.
The defendants attacked the petition on the ground that the district court was without jurisdiction to entertain the action. They argued that it was the intent and purpose of the new probate code, G. S. 1941 Supp. chapter 59, to confer exclusive original jurisdiction over all matters pertaining to the settlement and distribution of decedent’s estate upon probate courts.
The precise question was a new one. This court made a careful examination of cases that had been passed on recently by us and pointed out that there were facts that distinguished each of them from the case under consideration. The case of Dent v. Morton, supra, upon which plaintiff relies, was decided in January, 1938, before the new probate code was enacted.
This court in the case of Foss v. Wiles, supra, then proceeded to point out the pertinent provisions of the new probate code, especially some of the provisions of G. S. 1941 Supp. 59-301, which read as follows:
“The probate courts shall be courts of record, and; within their respective counties, shall have original jurisdiction:
“(3) To direct and control the official acts of executors and administrators, to settle their accounts, and to order the distribution of estates.
“(5) To determine the heirs, devisees, and legatees of decedents.
“(11) Such other jurisdiction as may be given them by statutes pertaining to particular subjects.
“(12) And they shall have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.”
This .court then said:
“From the various provisions of the code it clearly appears the probate court had original and exclusive jurisdiction, not only of the personalty but also of all real property which belonged to decedent’s estate. It was exercising that jurisdiction at the time the instant action was filed. Under the law it was required to determine and describe the property and to state the proportion or part thereof to which each heir, devisee and. legatee was entitled, and that degree was binding as to all oj the estate of the decedent, whether specifically described in the proceedings or not. (G. S. 1939 Supp. 59-2249.) The probate court could not distribute the estate properly, pursuant to statutory direction, without first settling the questions which were germane to the subject of distribution. Under the provisions of G. S. 1939 Supp. 59-301, that court was expressly granted original jurisdiction and authority to exercise such equitable powers as might be necessary and proper fully to hear and determine any matter properly before it. The matter of the settlement and distribution of the entire estate was properly before it and its original jurisdiction over those matters could not be circumvented by plaintiff filing an independent action in the district court.” (p. 269.)
The provisions of subsection 12 of G. S. 1941 Supp. 59-301 should be noted. This subsection confers equitable powers on probate courts with respect to matters properly before them. It is a well-established rule in this state that if a party has an adequate remedy by an ordinary legal proceeding in the probate court to obtain the desired relief he cannot bring an action in the district court to obtain that relief. (See Correll v. Vance, 127 Kan. 840, 275 Pac. 174; Holmes v. Conway, 128 Kan. 430, 278 Pac. 8; Shuckrow v. Maloney, 148 Kan. 403, 412, 83 P. 2d 118.)
In this case the legislature in enacting the probate code and conferring equitable powers on probate courts must have intended to give probate courts jurisdiction to hear cases such as the case with which we are dealing. Otherwise, the provisions of subsection 12 would have been meaningless. Hence, there is an adequate remedy for plaintiff by beginning a proceeding in probate court.
In this action the real estate in question was a part of the decedent’s estate. This estate was being administered in probate court. It was necessary that the title to this piece of real estate be settled in order that the estate be settled. This required an adjudication of the questions raised by the petition. Hence the probate court had exclusive, original jurisdiction of this action.
The conclusion just reached would require the affirmance of the judgment.
The defendant makes another argument as to why the plaintiff could not recover. She contends that the contract pleaded is not the sort ojf oral contract which courts of equity will enforce.
On this phase of the case plaintiff cites and relies on Dent v. Morton, supra, and In re Estate of Hutchison, 151 Kan. 333, 99 P. 2d. 992. These two cases do not support the contention of the plaintiff. The contract with which we are dealing was that plaintiff was to stay with Hickey as partner and carry the principal burden of caring for the partnership business and to help Mr. Hickey with his private affairs. The Morton case contains a comprehensive review of the decisions of this court where it was sought to enforce contracts of this sort in equity. In all of them there is the thought that equity will enforce such contracts when the services performed were such that they could not be compensated for with money. In Bray v. Cooper, 145 Kan. 642, 66 P. 2d 592, this court recognized that the love and companionship of a child cannot be measured with money. The cases of this type generally are those where some young person has come into a family or has given his services to an aged person and rendered them personal services which involved love, affection, companionship and consideration. The contract pleaded here was no more than a business arrangement. Plaintiff agreed to stay with the decedent in his hardware business. The petition specifically pleads he was to help decedent in his business affairs. No reason appears why these services could not have been measured in dollars.
In re Estate of Hutchison, supra, dealt with a situation where an aged and ailing mother was taken into the home of a daughter, who cared for her and nursed her. The services rendered could' not be compensated with money.
In Andrews v. Athens, 44 Ida. 797, 260 Pac. 423, the oral contract for the conveyance of real estate which the plaintiff sought to enforce was that he would manage his uncle’s business which would consist of collecting rents, paying taxes, keeping buildings insured, etc. The court said:
“In practically all the cases where specific performance was decreed the contracts called for the performance of duties of a filial and intimate personal nature, the value of which could not be estimated. This, of course, presents an entirely different question, and such authorities are not in point in this case. Here the deceased or promisor was not to live in the family of the respondent, and no close, intimate or filial relationship was to exist. The contract simply required respondent to look after the business of the deceased. He was to handle the farms and various properties, receive and disburse moneys, and in general act as the business advisor and assistant of the owner. He was required to render no service that an ordinary real estate agent or factor could not and does not perform for his clients. This was not a contract for the personal care of an aged person, where great patience with his infirmities was required, contemplating not only food, medicine and clothing, but good temper, forbearance, and honest effort to please, and an intimate family relationship; but was simply a business arrangement for the management and care of the. property of the deceased.” (p. 805.)
In Roberts v. Roberts, 130 Kan. 85, 285 Pac. 584, the plaintiff was seeking to enforce an oral contract to devise real estate. The contract was that if plaintiff would remain at home and work on the farm with his father after he became of age, he would have the quarter of land. In considering the question with which we are concerned this court said:
“The decisions (and they are many) which uphold contracts of the nature last indicated, where they relate to real estate are based upon the proposition that the value of the services rendered cannot fairly be measured in money. Whenever the services are of a character that they can be measured in money and recovery had, equity will not enforce such a promise.” (p. 92.)
We have heretofore pointed out that the services which the plaintiff alleged he rendered decedent could have been compensated in money. We conclude, therefore, that the contract pleaded was not the sort of contract which equity would enforce.
One more question remains in this case. In the answer of the defendant she alleged that the plaintiff had failed to pay defendant the rent due her for the property involved in this case which at the time of filing the answer amounted to $600. Besides praying that plaintiff take nothing by this action defendant prayed for judgment for $600, with interest. The plaintiff in his reply admitted that he had not paid this $600. The trial court refused to enforce the contract and gave defendant judgment for $6(j0, with interest. The pleading filed by the defendant was called an answer, but whether it had the effect of a cross petition depends on its contents rather than its name. (See Upham v. Shattuck, 151 Kan. 966, 101 P. 2d 901; also Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138, 109 P. 2d 197.) The paragraph to which reference has been made had the effect of a cross petition in so far- as it stated a ground for affirmative relief. The district court was the only tribunal where the administratrix could enforce her demand against the plaintiff. Hence when she pleaded that defendant had not paid the $600 rent and the plaintiff admitted that he had not paid it, the trial court was correct in giving her judgment for that amount.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
The State Board of Dental Examiners appeals from a temporary injunction, granted in the district court, restraining it from proceeding with a hearing on a complaint which sought revocation of appellee's license to practice dentistry.
The complaint, signed by C. Glenn Morris and filed in November, 1941, alleged that appellee, a practicing dentist in Kansas City, Kan., was “guilty of obtaining and seeking to obtain money and other things of value by false and fraudulent representations” and that he was also guilty of “dishonorable conduct.” More specifically, the allegations were—
“That said licensee has obtained and sought to obtain property and money by false and fraudulent representations through the medium of newspaper advertisements, hereinafter set out as Exhibits ‘A,’ ‘B,’ and ‘C,’ which advertisements have been caused by him to be circulated in newspapers of general circulation of said city and state in the newspapers and at the times hereinafter more fully set forth.
“That said licensee is guilty of dishonorable conduct in making use of and causing to be published advertising statements of a character tending to deceive and mislead the public; which advertise professional superiority; which advertise prices for professional services; and which advertising contains representations of teeth, and makes reference to materials used or to be used; and which advertising calls the attention of the public to the licensee as being engaged in the practice of dentistry other than by the use of a professional card containing only his name, title, degree, office location, office and residence telephone numbers and limitation of practice, if any, all of which advertising was by said licensee caused to be published in ‘The Kansas City Kansanand ‘The'Shopper/ newspapers of general circulation in said city of Kansas City, Wyandotte county, Kansas. . . .
“That said acts of said licensee are contrary to the statutes regulating the practice of dentistry. That said acts of said licensee fall within dishonorable conduct as defined by the State Board of Dental Examiners in the rules adopted by said Board on March 30, 1939, all of which said licensee well knew. That said acts of said licensee constitute grounds for revocation of his license as provided in section 65-1407, G. S. 1935.”
The complaint asked that the licensee be given
“An opportunity to show cause, as provided by the rules adopted by said Board on March 30, 1939, and if sufficient cause be not shown, that this complaint be set for hearing before the Board under the provisions of section 65-1407, G. S. 1935.”
Pursuant thereto the licensee did appear, and protested the sufficiency of the complaint and the jurisdiction of the board. After taking the matter under advisement, the board advised the licensee in a letter dated December 16,1941, that the complaint would be set for hearing, and on December 30,1941, advised him that the hearing would be held at the Wyandotte county courthouse on January 26, 1942.
On the date set for the hearing, the district court, acting upon a petition of appellee which sought a temporary and permanent injunction, entered an order enjoining the board from proceeding with the hearing while the injunction proceedings were pending, and “until the further order” of the court. From that order this appeal was taken.
The allegations—or contentions—of appellee may be summarized as follows: Morris is attorney for the board and therefore not a bona fide complainant; the complaint is in fact the complaint of the board and therefore the board is disqualified and has no jurisdiction to hear the case; the board has already adjudged appellee guilty of “dishonorable conduct” because of the mere publication of the advertisements referred to in the complaint; the rule of procedure herein involved and above quoted calls for a finding that the accused is guilty as charged before any formal hearing on the complaint can be held and before any adequate opportunity is afforded the accused to be heard; none of the acts specifically complained of constitute “dishonorable conduct”; the “threatened and impending” acts of the board are “unlawful, arbitrary and oppressive,” will deprive appellee of his constitutional right to a fair and impartial hearing and will inflict irreparable injury upon him; he has no plain and adequate remedy at lg,w by which to protect his long-established practice and his right to continue in the practice of dentistry.
We first scrutinize the regulations under which proceedings for consideration of complaints are had by the board. If appellee is correct in interpreting them to provide that hearings to determine the merits of a complaint are held only after the board has already determined that the accused is guilty as charged, then the rules violate the right of due process and are, of course, invalid. The rule in question is as follows:
“Whenever it shall come to the attention of the Kansas State Board of Dental Examiners that any dentist is practicing in a manner constituting dishonorable conduct, it shall be the duty of the board to notify the person so accused of dishonorable conduct of said charge and to notify said person to appear before the board and show cause why formal proceedings should not be instituted to revoke the license of the accused. Said notification shall be in writing and delivered to the accused either in person or by registered mail and shall notify the accused of the specific charge against him and further notify the accused when he or she must appear before the board to show cause, but in no event shall said hearing be held within fifteen days from the date the notice was mailed or delivered to the accused. In the event that the accused fails to appear pursuant to said notice then the board may proceed to revoke his or her license pursuant to the laws of Kansas. After the board has given the accused an opportunity to show cause why proceedings should not be instituted against him or her to revoke his or her license and has fully considered the charges made, and in the event that the hoard is convinced that the accused is guilty of dishonorable conduct, it may proceed to revoke or suspend the license of the accused pursuant to the laws of the state of Kansas.” (Italics supplied.)
Appellee contends that the provision indicated in italics above calls for predetermination of guilt. Although the rule might have been stated much more clearly, we disagree with appellee’s interpretation. The evident purpose of the rule is to give the licensee an opportunity, first, to appear at a preliminary hearing to show cause why the formal hearing should not be held on the merits of the complaint, and if no sufficient cause is shown, to proceed then with the hearing, at which the licensee will have opportunity to be heard fully on the merits. Order of revocation is only to be issued when the board is convinced, after the formal hearing, that the licensee is ■guilty of dishonorable conduct. If the appellee’s interpretation of the rule is correct, there would be no purpose in holding the formal hearing. Moreover, it is evident from the record that the board does not follow appellee’s interpretation of the rule. In the board’s letter notifying the appellee of the hearing on the merits set for January 26, 1942, there is no indication whatever that the case had been prejudged. On the contrary, the latter was simply a notice that the board had decided that a hearing should be held. Nor is the board disqualified from hearing the complaint by the- fact that the complainant is attorney, for the board. There is nothing in the record to show that he did not file the complaint entirely upon his own initiative, and any averments in the petition to the contrary are mere conclusions. Certainly there is nothing in the complaint, the notice of hearing or in the rule of procedure to indicate that the board will not hear and determine the issues fairly and impartially. We must assume that it will do so. Judicial appeal will be open to the licensee if and when the contrary is shown, or it is made to appear that the board is proceeding or has proceeded unlawfully.
It is well-settled law that courts may not, and do not, interfere with lawfully constituted administrative agencies in the lawful performance of their lawful duties. (Kansas City v. Utilities Commission, 103 Kan. 473, 176 Pac. 324; State Comm’n v. Wichita Gas Co., 290 U. S. 561, 78 L. Ed. 500, 504-505; Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041.) Any other policy would paralyze the administrative arm of government and substitute judicial for executive functions.
But appellee urges that in his petition he freely admitted the publication of the advertisements which complainant alleges constitute “dishonorable conduct,” and constitute “obtaining” and “seeking to obtain” money “under false and fraudulent representations,” and that it follows, therefore, that the board will find him guilty as charged, and will revoke his license. On this ground, he invokes the jurisdiction of the court to determine whether the newspaper advertising complained of constitutes action or conduct justifying, under the law, the revocation of appellee’s license. This contention is answered by what has already been said. We cannot usurp the administrative duties of the board. There is no basis in the record to assume that the board will find that the acts complained of constitute violations justifying revocation or that appellee’s license will be revoked. The record shows only that the board was proceeding to hear the complaint on its merits, in the discharge of its lawful duties. The court had no jurisdiction to restrain the board from doing so.
It may be well to make clear that the only question here determined is the right of the board to proceed with the hearing upon the complaint. Whether the rules of the board defining “dishonorable conduct” under the law are in all respects valid, or whether, if valid, the acts complained of, if committed, were in violation of such rules or of the statutes, are not here determined. We cannot anticipate the action of the board in determining the various pertinent issues that may be raised upon the hearing upon the complaint.
The judgment is reversed with directions to set aside the temporary injunction and dismiss the action.
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The opinion of the court was delivered by
Harvey, J.:
This was a habeas corpus case. The petitioner is a prisoner in our state penitentiary. On December 31, 1941, he filed his petition for a writ in the district court of Leavenworth county against the warden of the penitentiary. The court issued the writ-commanding respondent to have the body of the petitioner before the court on January 6, 1942, and then and there show cause of his detention. On January 5, 1942, the warden filed a response and advised the court that Mr. Walter Biddle, county attorney of Leavenworth county, would handle the matter for the attorney general’s office. At the hearing before the court on. January 6 evidence was offered on behalf of the petitioner and the respondent. Upon the consideration of the evidence the court denied the petition and ordered the petitioner remanded to the custody of the warden. No motion for a new trial was filed. On the 6th day of January, 1942, the petitioner filed in court a notice addressed “To the Honorable, The District Court of the State of Kansas in the County of Leavenworth, Judge J. H. Wendorff, County Attorney Biddle, Greetings: You are notified that the petitioner, Danny Franklin Dean, intends to and does appeal to the Kansas State Supreme Court from the decision,” etc. This had been subscribed and sworn to before a notary public on December.27, 1941, which was prior to the filing of the petition. It was not served upon the warden, nor upon his attorney of record, nor indeed upon anyone.
The procedure in habeas corpus cases is prescribed by our code of civil procedure (G. S. 1935, 60-2201 to 60-2225). Under G. S. 1935, 60-3306, the notice of appeal must be served upon the adverse party or his attorney of record. This court has jurisdiction of cases on appeal only when the appeal is taken in conformity to our statute. Since our statute was not complied with the result is we have no jurisdiction of the appeal.
-The appeal therefore is dismissed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to quiet title to real estate and to enjoin defendant from interfering with plaintiff’s use and possession of certain personal property located thereon. Judgment was for the plaintiff. Defendants appeal.
The real estate in question is two town lots in Holton. After alleging the residence of the parties, the petition alleged that plaintiff was the owner of the two lots, including all buildings and machinery located on them; that he by and through his immediate predecessors in title had been continuously in open, notorious and actual possession of the lots for more than twenty years; that plaintiff claimed fee title to the lots and buildings, and defendants claimed title adverse to that of plaintiff, which constituted a cloud on his title.
The prayer was that the title of plaintiff to the real estate be quieted and that defendants be enjoined from claiming any interest in the personal property.
In a supplemental petition plaintiff made his original petition a part thereof and further alleged that he acquired title to the real estate in question by quitclaim deed from the Union Pacific Railroad Company. A copy of the deed was attached.
The petition further alleged that plaintiff’s claim to the personal property in question was based upon a written lease entered into between certain parties on January 8, 1929, and assigned to one of the defendants on January 1,1933; that this lease provided that any breach of any covenant in it by the lessee would terminate it; that the lease also provided that within thirty days after the termination of the same, the lessee should remove from the premises all structures and other property and in case of lessee’s failure to do so the structures' and other property should upon the expiration of thirty days become the property of the lessor.
The petition then stated that the lessee failed to pay the rent for 1938 and by reason of that default the lease was terminated, and the lessee failed to remove the structures from the land but surrendered possession and plaintiff had been and was in possession of them.
The prayer of this supplemental petition was the same as that of the original petition.
The answer was a denial that plaintiff was in possession of the premises but alleged that he was a trespasser thereon and that the defendant Beightel was the owner of the premises..
The answer further stated that the Union Pacific Railroad Company in 1935 abandoned the land referred to in the plaintiff’s petition and even since that time had no interest in the premises and the lease was void.
The answer also alleged that the property prior to 1935 was used by the company for right-of-way purposes and that the company had removed its tracks from the lots and caused them to revert to the original owners thereof and that the original owners had conveyed them to Beightel and he was then the owner of them free and clear of any claim of the railroad company or its assigns.
The evidence of the plaintiff showed that the lots were conveyed to the railroad company in fee title by warranty deed without any reversion clause and without any mention of the use to which the property would be put by the company. This deed was executed in 1889.
The lease was next introduced in evidence. It contained a stipulation that the breach of any convenant to be performed by the lessee would work a termination of the lease and that no notice of such termination would be required and that the lessor might at once enter upon the premises and repossess same. The lease contained another section that the lessee agreed to vacate the property within thirty days after the termination of the lease and remove from the premises all structures not belonging to the lessor; that there was an elevator scale house and other buildings on the lots; that the plaintiff used them for machinery; that the rent on the lease had been paid up to January 1, 1938, and that on November 11, 1938, plaintiff obtained from the Union Land Company a quitclaim deed to the lots and the lots had been conveyed to the Union Land Company by the railroad company.
The defendant testified that he had operated the elevator since 1919 under a lease; that the- elevator was located partly on one lot and partly on another; that the railroad track was taken up and service abandoned in 1935; that he never did deliver the property to plaintiff.
Defendant also testified that on November 25, 1938, he obtained a quitclaim deed to each of the lots from one of the numerous heirs of the persons who had conveyed them to the railroad company.
After having heard this evidence the trial court found that the plaintiff was the owner of the real estate described, including all fixtures and elevator buildings, machinery and equipment thereon and that the defendants had no right, title or interest thereto.
The title of the plaintiff to the real estate was declared to be absolute and the defendants were barred from interfering with possession of or setting up any right or interest in any of the property thereto adverse to the title of the plaintiff.
After a motion for a new trial was overruled the defendants appeal.
Appellants argue that when the land was conveyed to the railroad company the conveyance only passed title to a right of way thereon regardless of what was said in the deed and that when the property of the railroad company was abandoned and the tracks torn up title to the premises reverted to the original owners, and the defendant Beightel having purchased the interest of the heirs of the original owners, was the absolute owner of the premises.
Defendant cites and relies on Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208. This court held under the peculiar circumstances of that case that the conveyance of land to a railway company for a right of way did not vest an absolute title in the company, but the interest conveyed was terminated by the use for which the property was acquired and when that use was abandoned the property reverted to the adjoining owner.
The case is not authority for the position taken by the defendant here, however, for the reason that the court stated as follows:
“We are not called upon to decide, nor do we intend to express an opinion, as to the rule applicable where lands are purchased or obtained without regard to the use to be made of them, or where there is nothing in the contract or conveyance indicating that they have been purchased for a right of way. Lands may be acquired by donation or by voluntary grant for aid in the building of railroads, and railroad companies may doubtless acquire lands for various uses in connection with railroad business that could not be taken by virtue of eminent domain, and as to these different rules may apply.” (p. 546.)
The above statement from the case applies to the facts in this case.
The reasons for such holding in that case are not present here. It is obvious that it would be contrary to public policy for someone to whom the railroad had conveyed to own a narrow strip of land such as a railroad right of way running through farms and cities, etc., when it was no longer used for railroad purposes. In this case the entire lots were conveyed. The record shows that only part of the lots were used for railroad purposes. The general rule stated in 51 C. J. 614 is as follows:
“Where land is conveyed to the railroad company in fee without qualification, its title thereto is not lost by nonuser or abandonment.”
In Midstate Oil Co. v. Ocean Shore R. R. Co., 93 Cal. App. 704, 270 Pac. 216, the court considered a situation analogous to the one we have here. There the original grantor of real estate to a railroad company where the conveyance was in fee with no limitation as to the use and the railroad company had abandoned use of the land for railroad purposes claimed that the land had reverted to him on account of the abandonment. The court said:
“The deed from Henry J. F. Butts et al. to the Ocean Shore Railway Company must be measured by its own terms. There is nothing in the deed which in any way limited the company in the use' that it might make of the land. The fact that the deed makes use of the words ‘right of way’ in one of its calls in the description does not limit the use to which the lands may be put. We must hold that the deed conveyed the fee. Such being the case, did the railroad company lose its fee to the lands by nonuser or abandonment?” (p. 708.)
The court then referred with approval to the general rule in 33 Cyc. p. 221 as follows:
“But where the land is conveyed to the railroad company in fee its title thereto is not lost by nonuser or abandonment.”
Several authorities are given in that opinion in support of the above rule.
This opinion is interesting to us because the respondent in that, case relied upon Abercrombie v. Simmons, supra, and the court pointed out that opinion only applied to cases where the contract of conveyance showed the land was sold and received for use as a right of way, and the opinion did not cover a case such as the California court was considering and such as we are considering. See, also, Watkins v. Iowa Cent. R. R. Co., 123 Ia. 390, 98 N. W. 910; Rollins v. Van Jellico Min. Co., 194 Ky. 41, 238 S. W. 193; Enfield Mfg. Co. v. Ward, 190 Mass. 314, 76 N. E. 1053; and Chamberlain v. Northeastern R. R. Co., 41 S. C. 399, 19 S. E. 743, 44 A. S. R. 717, 25 L. R. A. 139.
To the same effect is Danielson v. Woestemeyer, 131 Kan. 796, 293 Pac. 507, where the court held:
“Where the owners of land claiming to be abutting owners on an abandoned railroad right of way whose land is separated from the real right of way or right of way proper by a strip of land to which the railroad company acquired the fee title and used it for railroad purposes other than right of way and later conveyed the same before discontinuing operations, such separation is held to deprive the first-mentioned owners' of their claim of right as abutting owners in and to the right of way proper, and also in and to the intervening strip.” (Syl. A3.)
We hold that the court was correct in quieting the title of plaintiff to the real estate in question.
The question as to whether the court was correct in enjoining the defendants from interfering with the plaintiff’s possession of the personal property that was located on the real estate might be disposed of under the rule just laid down. Since we have demonstrated that the defendants had no interest whatever in the real estate, they clearly have no right to the personal property located upon the real estate. Furthermore, the provisions of the lease in question are reasonable and enforceable. (See 36 C. J. 176.) The lease to the defendant Blackwood was terminated by his nonpayment of rent in 1938. He did not remove the property within thirty days, as the lease provided he should, and the property located thereon became after the expiration of thirty days the property of the owner of the lots.
The judgment of the trial court is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages to plaintiff’s residence alleged to have been caused by the concussion of blasting operations carried on by defendants operating a stone quarry situated within the corporate limits of'Kansas City. In addition to allegations appropriate for a common-law action for such damages it was alleged defendants neglected to comply with ordinance No. 7367 of the city of Kansas City with respect to procuring a permit for blasting upon a written application containing required information, and for the covering, as directed by the city engineer, of the object to be blasted. Defendants moved to strike out and delete from the petition all the allegations pertaining to city ordinance No. 7367, for the reason that such allegations do not add to or constitute a part of plaintiff’s cause of action; that there is no causal connection between the alleged breach of the ordinance and the injuries complained of by plaintiff, and the pleadings of the ordinance and its alleged violation are calculated to and will prejudice defendants on the trial of the action. After a hearing the trial court sustained this motion (except as to section 3 of the ordinance) and plaintiff has appealed from that ruling.
Our statute makes no provision for an appeal from an order striking a part of the matter contained in a pleading. However, where the matter stricken is essential to plaintiff’s cause of action, or sets up a separate and independent defense thereto, the ruling of the court is treated as a demurrer to the material portion of the pleading which is stricken and the' appeal is entertained, since a ruling upon a demurrer is by statute made an appealable order. (G. S. 1935, 60-3302. Redfield v. Chelsea Coal Co., 138 Kan. 373, 375, 26 P. 2d 579.) Here it seems clear to us, as it did to the trial court, that plaintiff, having pleaded a common-law action for damages, adds nothing to that by pleading this ordinance and its violation. (Zumbrun v. City of Osawatomie, 135 Kan. 26, 10 P. 2d 3.) Damages to plaintiff’s building from the blasting operations would be just as great if the ordinance had been complied with as. though it had not.
In this court appellant argues that his action is really based on two causes of action, although they are not separately stated and numbered in the petition, and says one is the common-law action for damages and the other is the violation of this ordinance. But, considered from that viewpoint, we are unable to see that plaintiff is in any better position, for still there appears no caüsal connection between the alleged violation of the ordinance and the injury plaintiff is alleged to have sustained.
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The opinion of the court was delivered by
Dawson, C. J.:
This action has arisen out of an alleged breach of a warehouseman’s duty to exercise due care of certain raw skunk hides which plaintiff had placed in defendant’s cold-storage warehouse in Wyandotte county.
Defendants have brought the cause here for an intermediate appellate review of the trial court’s rulings on the pleadings.
In plaintiff’s petition it was alleged that he was a resident of Fort Scott and was engaged in the business of purchasing, processing, shipping and selling hides, furs and wool; that defendant, the Mid west Cold Storage and Ice Corporation, operated a bonded warehouse in Wyandotte county, in connection with which it maintained a cold-storage plant for the storage of perishable merchandise; that defendant had filed the' requisite warehouseman’s bond with the secretary of state in conformity with the statute (G. S. 1935, 82-165), and that this bond had been furnished by Central Surety and Insurance Corporation, codefendant herein.
Plaintiff alleged that on December 26, 1940, he delivered to defendant, at its cold-storage plant near Kansas City in Wyandotte county, 25 bags of furs for cold storage; that in said bags were 6,371 skunk pelts of the value of $2 each, which value was declared by plaintiff at the time of their placement in storage with defendant. Plaintiff also alleged that on December 29, 1940, he delivered to defendant for cold storage 33 additional bags of furs containing 8,363 skunk pelts of the value of $1.50 each, which value was declared by plaintiff at the time of their placement in storage with defendant.
Plaintiff alleged that on January 29, 1941, while preparing to remove some of the skunk hides, he learned that they had greatly deteriorated in value while in storage in defendant’s warehouse, that the pelts had decomposed so that the fur slipped from the pelts, and that their market value had been greatly impaired; that the furs were withdrawn from storage between January 30 and February 19, 1941; that if they had been kept by defendant in the condition in which .they were placed in storage as a reasonably careful owner would have kept them their total market value would have been $19,867.20; that on account of the deterioration and decomposition of the pelts while in storage in defendant’s warehouse their value had so diminished as to cause loss and damage to plaintiff in the sum of $15,000. It was further alleged that the pelts were delivered to the defendant warehouseman in good condition and were returned by him in a damaged condition, which damages were caused by defendant’s failure to exercise the care which a reasonably careful owner of similar goods would have exercised.
Attached to plaintiff’s petition was a copy of the defendant warehouseman’s bond filed with the secretary of state, on which the Central Surety and Insurance Corporation, codefendant herein, was surety in the penal sum of $15,000.
The defendants filed separate motions to require plaintiff to make his petition more definite and certain in many and various particu lars, most of which were overruled, but some of which were sustained in part, to wit, that the number, size, character of the pelts should be stated; that the basis on which their alleged value was fixed should be stated; that the actual condition of the pelts at the time of their delivery to defendant should be pleaded; that the number of pelts alleged to be damaged should be stated, and that the manner in which plaintiff claimed to have learned of the deterioration of the pelts, while in storage should be set forth.
Plaintiff filed an amendment to his petition to conform to the requirements of the court, which, in brief, itemized the prices he had paid for the pelts and his expenses for commissions and trucking charges pertaining thereto. He alleged that all the pelts were examined by plaintiff immediately before their being stored with defendant and that they were then in sound A-l condition; that all of the furs stored on December 26, 1940, were damaged, and 4,113 of the second lot of pelts stored on December 29 were damaged,- and out of both lots 2,170 pelts were completely ruined and rendered wholly worthless; that in order to prevent further deterioration of the other pelts it was necessary to open the bales of pelts and scatter them in defendant’s cold-storage room; that the actual cost of the 6,371 pelts of the first lot was $12,368.60 and the trucking and commission charges thereon were $416.30; that the actual cost of the 4,113 pelts of the second lot deposited with defendant on December 29, 1940, together with the pertinent commissions and trucking charges thereon was $5,152.04; that the actual cost of damaged and destroyed pelts out of the two lots placed in defendant’s cold storage warehouse was $17,936.94, and that their actual market value in the condition in which they had been stored and which would have continued to be their fair market value when withdrawn from defendant’s warehouse if they had been kept by defendant as a reasonably careful owner would have kept them was $19,867.20, based on the 'then current New York market price after deduction of transportation and selling costs.
Plaintiff’s amendment to his petition also alleged that the total salvage returns on the damaged pelts, after plaintiff had done all that was possible to minimize the loss was $3,718.77, and that plaintiff’s total damages were in excess of $15,000 but that he waived all claim for damages in excess of that amount against both defendants.
; Following the filing of the foregoing- amendment to the petition defendants filed separate demurrers on the ground that the petition and amendment thereto did not state sufficient facts to constitute a cause of action.
These demurrers were overruled and both defendants appeal, assigning error on the partial overruling of their motions to make plaintiff’s petition more definite and certain, and on the overruling of defendants’ separate demurrers.
Touching the first error assigned, it is a general rule in this jurisdiction that motions to make a pleading more definite and certain are addressed to the trial court’s discretion, and its rulings thereon are not open to intermediate appellate review. (Birch v. Solomon Nat’l Bank, 121 Kan. 333, 246 Pac. 688; Bankers Mortgage Co. v. Dole, 136 Kan. 445, 16 P. 2d 499; Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413.) There is an exception to this rule (Lofland v. Croman, 152 Kan. 312, 316, 103 P. 2d 772), but it is not pertinent here.
Under the error assigned on the trial court’s ruling on defendants’ demurrers, it is urged that because the property delivered to the warehouseman was perishable goods, that is, goods containing within themselves the natural inherent qualities which in time would cause their own destruction, the allegations of plaintiff’s amended petition touching the sound A-l condition of the pelts when they were delivered to defendant for cold storage, and that a month later they were found to have deteriorated and been greatly damaged, which deterioration and damage would not have occurred if defendant had cared for them as a careful owner of similar goods would have done, were- not sufficient to state a cause of action. It is contended that good pleading, considering the nature of the bailed property, would have required plaintiff to allege specifically the facts wherein the defendant warehouseman was negligent in respect to the storage and care of the pelts and in what respect defendant failed to exercise the care a reasonably prudent owner would have used. It is argued that plaintiff’s allegations of fault and failure on the part of the warehouseman were mere conclusions of the pleader. Counsel for appellant invokes the rule that where the trial court overrules a motion to require the allegations of a petition to be stated more definitely and with greater certainty, the petition is to be strictly construed against the pleader. Quite .so, but the relevancy of that rule of pleading is not.' apparent here. Plaintiff did plead the pertinent facts of his cause of actioñ in ordinary and concise language in conformity with the requirement of the civil code (G.-S. 1935, 60-704), and any repetitive matter the petition as amended may contain was induced by the motions of defendants.
Another fault which defendants find with- the petition is that it is uncertain whether plaintiff’s action is based on contract or tort.
If this criticism were more meritorious than it is, defendants might rely on the familiar rule that where it is doubtful whether a petition sounds in contract or in tort, every intendment is resolved in favor of construing it as an action on contract. (Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; Delaney v. Implement Co., 79 Kan. 126, 98 Pac. 781.) However, in the case at bar, nothing is left to intendment. The pleader alleges that he placed his goods in defendant’s custody as a warehouseman, and joins the surety on his official bond, setting up the bond as an exhibit to his petition. We hold that the action was essentially predicated on alleged breach of the duty imposed on the warehouseman by our warehouse receipts act (G. S. 1935, 82-101 et seq.), “to exercise such care in regard to [goods entrusted to him] as a reasonably careful owner of similar goods would exercise,” and holds him not “liable . . . for any loss or injury to the goods which could not have been avoided by the exercise of such care.” (G. S. 1935, 82-121.) An action for breach of a statutory duty is essentially one in assumpsit, and the obligations thereof are those imposed by the statute. (G. S. 1935, ch. 82.)
Counsel for appellants cite and quote from decisions of other jurisdictions which hold that where goods are of a perishable nature it is incumbent on the plaintiff, in an action against a warehouseman for breach of his duty to care for such goods placed with him for storage, to allege and prove the specific facts wherein the warehouseman failed in the discharge of that duty. (8 C. J. S. 342 et seq.) However, we have precedents of our own which must not be overlooked. In Wiley v. Locke, 81 Kan. 143, 105 Pac. 11, certain household goods which had been delivered to a warehouseman were destroyed by fire. In an action for their loss it was alleged that the warehouseman had failed to take proper care of them. The bailor recoyered judgment, and on appeal this court said:
“When the [plaintiff] appellee proved that he had entrusted his goods to the appellants [warehousemen], who were unable to return them because they were burned, it then devolved upon the appellants to show that the loss did not occur through any want of care on their part.” (p. 147.)
In Caldwell v. Skinner, 100 Kan. 567, 164 Pac. 1166, plaintiff recovered damages for the loss of certain goods which had been destroyed by fire while in the custody of the defendant warehouse-men. On appeal it was contended that it was enough for defendants to plead the destruction of the goods by fire while stored in their warehouse, and that it was not necessary for them to plead and prove that the fire and consequent loss was without their fault. It was further contended that negligence is not presumed, and when it was shown that the goods were destroyed by fire the burden was then upon the plaintiffs to show that the fire was due to the negligence of the warehousemen. This court said:
“Cases are cited by defendants which tend to sustain their view, and there is a conflict of authority on the question, but the legislature has provided a different rule for establishing claims of this character. . . .
“Under the statute, if it be shown that goods were delivered to the warehouseman in good condition and destroyed, lost or returned in a damaged condition, it then devolves upon him to acquit himself of negligence; that is, to show a lawful excuse for his failure or refusal to deliver the goods in compliance with the demand. Doubtless the legislature considered that the warehouseman who had control of the premises and the goods entrusted to his care was better situated than the depositor to know the facts and circumstances under which the destruction, loss or damage occurred, and is best able to prove them.” (p. 568.)
In examining decisions from other jurisdictions, there is a diversity of opinion touching the burden of proof on the question of a warehouseman’s liability in respect to perishable goods. In Ballston R. S. Co. v. Eastern States Refrig. Co., 126 N. Y. Supp. 857, it was held under a provision of the New York warehouseman statute identical with our own that where apples in fine condition when placed in a cold-storage warehouse in October, and continued in the same condition until February, but in April were scalded, discolored, and in a damaged condition, the warehouseman was required to account for their deterioration.
In John Nix & Co. v. Herbert, 149 Va. 131, 140 S. E. 121, 55 A. L. R. 1098, the action was for loss and damage to 4,577 barrels of apples, classed as sound under the usual tests of commerce, which had been placed in the cold-storage warehouse of defendant. On appeal from an adverse judgment, plaintiff complained of the trial court’s instructions to the jury to the effect that the burden rested on plaintiff to prove by a preponderance of the evidence that the loss was due to the failure of the defendant to exercise such care as a reasonably prudent owner of similar goods would exercise; and “Negligent acts or omissions-of . . . (defendant) causing the injury must be affirmatively proved.” (p. 136.)
But the supreme court of appeals reversed the judgment, holding that when the bailor had proved the apples to have been in good condition at' the time of their delivery to the warehouseman and their subsequent deterioration, the burden was on the warehouseman to show that the loss and damage was not due to his failure to exercise due care.
In Noel & Co. v. Schuur, 140 Tenn. 245, 204 S. W. 632, which was another cold-storage case, the first section of the syllabus reads:
. “In action against warehousemen for failure to properly preserve celery in cold storage, plaintiff’s evidence of delivery in sound condition and return in deteriorated condition established prima-fade case.”
An often-cited case involving the same general question is Holt Ice, etc., Co. v. Arthur Jordan Co., 25 Ind. App. 314, 57 N. E. 575, where the action was for damages to a quantity of butter placed in defendant’s cold-storage rooms. On appeal from a judgment for plaintiff, defendant assigned error on certain of the trial court’s instructions. In affirming the judgment the court of appeals held:
“An instruction in an action for damages to goods while in storage, to the effect that when plaintiff has shown that the bailee received the property in good condition, and returned it damaged, he has made out a piima ¡acie case of negligence, but if defendant did account for the injury to the property in any manner consistent with the exercise of ordinary care on its part then plaintiff, in order to recover, must show that the damage occurred through negligence, states the law correctly.”
See, also, Purse v. Detroit Harbor Terminals, 266 Mich. 92, 253 N. W. 228; Traders Compress Co. v. Precure, 140 Okla. 40, 282 Pac. 165, 71 A. L. R. 759; Alabam’s Freight Co. v. Jiminez, 40 Ariz. 18, 9 P. 2d 194; and notes to sec. 21 of Uniform Warehouse Receipts Act in Cum. Supp. to 3 U. L. Ann., pp. 37, 38.
The textbooks and encyclopedias cite a multitude of cases where railroads have been subjected to damages for goods entrusted to them in good condition and which have been delivered to consignees in damaged condition, but it is needless to rely on them here, because while a railroad serves in two capacities, as a carrier, and betimes as a warehouseman, it is not always clear in which of these capacities its breach of duty occurred.
We incline to the view that in an action for loss and damage of perishable goods placed in a cold-storage warehouse, our rule an nounced in our Wiley-Locke an-d Caldwell-Skinner cases necessarily must be applied. Why put perishable goods like raw pelts in cold storage? To subject them to such low temperatures that their natural inherent tendency towards deterioration and decay will be arrested for a reasonable length of time. If a warehouseman is not equipped to operate a cold-storage warehouse to serve the needs of owners of perishable goods he should not undertake that service. And in the nature of any bailment in a cold-storage warehouse it-would generally be impossible for the bailor to prove in what particular respects a warehouseman failed in his statutory duty to exercise the standard of care imposed on him by the statute. When the bailor has shown the facts touching the placing of his perishable goods in the cold-storage warehouse, and has shown that they were in sound first-class condition at that time, and that at a later time (of reasonable length) the goods had deteriorated and were in damaged condition, he has made a prima facie case of the warehouseman’s failure to exercise such care of the goods as a careful owner would use in caring for his own property. This is merely an application of the well-known legal principle of res ipsa loquitur. It will then rest on the warehouseman to show, if he can, such facts as will withstand the prima facie case made against him. (8 C. J. S. 342.)
There is little else in this appeal that needs attention. Defendants’ demurrer did not raise the point that plaintiff had not made a formal demand for the return of his property. The property was returned, so the want of a demand was immaterial. And it only needs careful perusal of Parker Corn Co. v. Chicago, B. & Q. Rld. Co., 120 Kan. 484, 244 Pac. 240, to discern that it is not analogous to the one at bar. The case of Farmers Union Coop. Creamery v. Atchison, T. & S. F. Rly. Co., 130 Kan. 831, 288 Pac. 569, which was an action for damages to butter shipped in a railway refrigerator car, while not altogether analogous, tends to support the rule which governs the instant case, especially where the court, speaking by Mr. Justice Harvey, said:
“Appellant contends that it is shown that the cause of the deterioration of the butter was spores, which were in contact with the butter at the time it was delivered to defendant for shipment. The question whether the butter deteriorated because of the inherent nature or vice of the shipment was throughlytried out, and the jury’s finding on that point is against the contention of appellant. There was evidence that the spores which caused the mold are present in the atmosphere; that the mold forms very slowly under proper- re frigeration. conditions, but in a temperature of 80 or 90 degrees would grow very rapidly. When the shipment' reached Chicago its appearance indicated that the butter had been in a temperature of 80 to 90 degrees, for the butter in the tubs had apparently melted, so much so that the outside of the tubs was stained, and had again solidified. Since this condition could not have been brought about while the butter was in the refrigerator cars—iced, as the evidence disclosed and the jury found they were—the jury might reasonably infer that the butter had been subjected to a temperature of that kind after it was received by the carrier and before it was placed in the refrigerator car.” (p. 833.)
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action on an accident insurance contract. Judgment was for the plaintiff. Defendant appeals.
• The petition alleged that on a date when the policy was in effect the glove on the right hand of plaintiff got in the beater of his combine, with the result that his hand and arm were mangled and it was necessary to amputate his right hand; that on account of this defendant became liable to plaintiff for $500; that proof of loss had been made and defendant refused to pay. The petition also alleged that the policy did not comply with G. S. 1935, 40-1109, because the benefits promised by the policy were printed in 18-point type and that the exceptions contained were printed in 10-point type, and were printed with less prominence than the benefits, and that on that account the policy failed to comply with the above statute of Kansas, which provides that no portion of a policy which purports by reason of the circumstances under which a loss was incurred to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances must be printed in bold-faced type with greater prominence than any •other portion of the policy. A copy of the policy was attached to the petition.
The defendant answered by way of a general denial, and further that the policy was issued and delivered in Iowa and hence was not ■subject to the laws of Kansas.
The parties entered into a stipulation as to the facts. First, as to the injury, it was agreed that on June 19, 1939, the plaintiff was working with his combine; that the combine was attached to the plaintiff’s tractor; that the motor of the combine was running and the.plaintiff was engaged in adjusting the combine and that his hand was drawn into the combine, with the result that it had to be amputated, and at the time the injury occurred the tractor and combine were not moving on the ground and were stationary. The policy provided in part that plaintiff was insured against the injury sustained while riding in a moving farm vehicle. It is true the combine was running, but it was not moving upon the ground; it was going nowhere and no movement was contemplated. Under such circumstances, we cannot hold that the provision subsequently quoted covered the injury to plaintiff. (See Eynon v. Continental Life Ins. Co., 252 Mich. 279, 233 N. W. 228.)
Plaintiff does not seriously contend that the above is not the rule. He relies upon the provisions of G. S. 1935, 40-1109. That section provides, in part, as follows:
“(a) No stock or mutual insurance company or association or other insurer shall issue or deliver any policy of insurance against loss or damage for the sickness or the bodily injury or death of the insured, by accident to any person in this state, ... (5) Unless a brief description thereof be printed on its first page and on its filing back in type of which the face shall be not smaller than fourteen point; nor (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply; provided, however, That any portion of such policy which purports, by reason of the circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances shall be printed in bold-face type and with greater prominence than, any other portion of the text of the policy.”
Plaintiff argues that the provision in the policy referred to as paragraph “g.” is really a provision reducing the amount of indemnity promised on account of the peculiar circumstances, and that since it is not printed in bold-faced type and of greater prominence than the other portions of the text of the policy, it is inoperative and should be stricken from the policy in considering this case.
This takes us to an examination of the policy itself. On the filing back of the policy appears the following, in 18-point bold-faced type:
“This policy provides benefits for loss of life, limb, sight, or time, caused by accidental means, to the extent herein limited and provided.”
Plaintiff argues that this is a part of the insurance clause' of the contract and that since clause “g,” to which reference has been made, is not printed in similar type and is printed in less prominence than the above clause, then clause “g” is not effective. We cannot agree with this argument. The clause just quoted on the face of the policy is no part of the insuring contract at all. It is obviously put there in compliance with G. S. 1935, 40-1109 (a) (5), quoted' above.
It is merely a descriptive statement on the policy printed on that part of it which appears when the policy is folded and 'ready for delivery. It adds nothing one way or another to the effectiveness of the policy.
The plaintiff next points out a similar statement which appears at the top of the first page of the policy in a little larger type than that of the statement to which reference has just been made. However, the same observation applies to both statements. Neither adds one way or another to the policy itself.
About midway- on the first page appears the language:
“Insuring Clause.”
Then the following statement, all in the same-sized type, with no-black-faced type:
“In consideration of the payment of an annual premium of two and 50/100 ($2.50), the Great Western Insurance Company (hereinafter called the Company), subject to all the conditions, provisions and limitations in this policy contained, hereby insures the person whose name appears as the insured on. the filing back hereof, from 12 o’clock noon, standard time, on the date of issue shown on the filing back hereof, for a period of one year, which period, is hereinafter referred to as the ‘premium term,’ and for such subsequent like ‘premium terms’ as shall be paid for in advance and accepted by the Company-at the same rate of premium, against the effects of personal bodily injury sustained as specifically set forth in the following paragraphs lettered from ‘a” to ‘i,’ inclusive, if caused solely and directly by external, violent and accidental means. The effect of the Personal Bodily Injury herein defined is hereinafter-referred to as ‘such injury’ when so caused and sustained:
“a. While driving or riding in an automobile;
“b. By being struck, knocked down, or run over by an automobile;
“c. While riding as a fare-paying passenger in a public automobile, stage,, bus, or taxicab being driven by a licensed driver;
“d. While riding as a fare-paying passenger on any railway passenger carr steamship, steamboat, or street railway car;
“e. While riding as a passenger on a passenger elevator (mine elevators, not. included) ;
“f. While riding in an airplane or dirigible balloon provided by an incorporated passenger carrier and while operated by a licensed pilot upon a regular passenger route between definitely established airports;
“g. While riding in or on any moving farm vehicle or portable machine such; as a tractor, wagon, buggy, sled, sleigh, plow, lister, harrow, cultivator, grain: binder, corn binder, rice binder, header, stalk cutter, mower, corn planter,, potato planter, seeder, rake, disk, disk harrow, hay loader, manure spreader or grain drill;
“h. By being kicked by a horse, mule or cow;
“i. By being gored by a bull or cow.”
It will be observed that this is the clause which constitutes the-contract between the plaintiff and defendant insurance company. Without it there would be no contract of insurance. The language-that follows relates to specific benefits, optional benefits and other-provisions of the policy. Clause “g” does not reduce the indemnity to be paid. It provides no situation under which the defendant would be liable for a less amount than that provided- for the same loss occurring under ordinary circumstances. It is merely a part of this insuring clause. Should it be stricken from the policy, as- plaintiff argues it should be, then the plaintiff would only be insured against the contingencies that remain in the other paragraphs.
Plaintiff relies upon what this court said in the case of Stewart v. Mutual Benefit Health & Ace. Ass’n, 135 Kan. 138, 9 P. 2d 977. In that case, however, the insuring clause of the policy provided that the company agreed to insure the plaintiff against any loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means. That was the insuring clause of the contract comparable to the insuring clause in this contract which has been quoted.
There was an additional provision in the contract in the Stewart case providing that an injury which resulted in infection should be be paid for under another clause which provided for a lesser amount than for accidental injury. This court held that since that clause was not printed in bold-faced type and with greater prominence than any other portion of the text of the policy, the policy should be construed as though the clause were not in it. It must be noted, however, that this was a separate provision from the insuring clause and there was a valid contract of insurance between plaintiff and defendant without that clause. The effect of the clause was to reduce the amount to be paid in cases where infection resulted from the injury and to an amount less than that provided for an injury where infection did not result.
The case we are considering is more nearly analogous to the case of Ewins v. Washington National Insurance Co., 295 Mich. 602, 295 N. W. 329. In that case the clause drawn into consideration required that the loss for which claim was made must have resulted within thirty days of the date of the accident. It was not printed with any greater prominence than the rest of the policy. Under a statute somewhat similar to ours the court held that the thirty-day provision was not an exception but simply set forth the conditions under which there would be a recovery.
In Kirkby v. Federal Life Ins. Co., 35 F. 2d 126, the accident policy. considered provided coverage for certain specified risks, and the language of these provisions was printed in a little smaller type than the balance of the policy. Passing on a question similar to the one we have here and considering a like statute, the court pointed out that parties to an insurance contract might contract for what risks the company should or should not be liable. The court said:
“The contracting parties may choose their own language and style of com position. They may embody their intention in the form of an agreement to insure against death or injury by accidental means generally and by appropriate exceptions eliminate therefrom all risks intended to be excluded, or they may by direct statement incur liability for specific risks only. ... In our view the contract carries no suggestion of exceptions or provisos. It does not purport to reduce any promised indemnity. It contains nothing obscure or doubtful. Its terms taken in their plain, ordinary, and popular sense are easily understood and leave nothing for interpretation by the courts.” (p. 129.)
See, also, Drogula v. Federal Life Ins. Co., 248 Mich. 645, 227 N. W. 692.
The judgment of the trial court is reversed with directions to enter judgment for the defendant.
Hoch, J., not participating.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover damages from the city of Wichita for personal injuries caused by a mob. The case was tried before a jury which answered eight special questions and returned a verdict for the plaintiff. The trial court entered judgment for $2,800 in conformity with the verdicj) and overruled a motion for a new trial. The defendant appeals.
Brief recital of facts may be made. During the latter part of August, 1939, disputes between several of the Wichita laundries and their employees were the cause of considerable friction between employer and employee representatives. At the plants where conferences between executives and officials of the union were unsuccessful in arbitrating their differences, the disputes resulted in orders directing the employees to strike. Monday afternoon, August 28, 1939, the executives of the Domestic Laundry and Dry Cleaning Company, plaintiff’s employer, and the officials of the union held a conference to discuss the employees’ demands for changes in wages and working conditions. After this conference, which was a failure insofar as settling the dispute was concerned, a strike was called.
Immediately after the conference, but before appearance of the pickets, the laundry management requested the police department to assign sufficient officers to protect its property and put down vio lence, calling attention to recent experiences of other Wichita laundries. The police department replied that “if -you have any trouble, you call us and we will take care of the situation from there.”
The plaintiff, Mrs. -Nora Carter, had been an employee of the Domestic Laundry Company for many years, and at the time of her injuries on Wednesday, August 30, 1939, was in charge of a department in the plant. The evidence tends to show that early on the morning of August 30 several groups of individuals, the largest estimated to include as many as 30 to 40 persons, surrounded the Domestic laundry building and angrily and vigorously, and in several instances using force, refused to permit persons to enter the premises. When the laundry company’s engineer drove up to the alley entrance in his car at 6 a. m. a crowd of 15 to 20 persons surrounded his car and forcefully denied him the right to get out. When he returned thirty minutes later in the laundry superintendent’s car a “gang” of men and women confronted them and ordered them not to come past the curb, and the engineer had considerable difficulty reaching his office. As one of the route drivers got out of his car and started to step on the curb in front of the office, he was knocked down between his car wheels and the gutter. When a watchman appeared at 6:30 he found several groups milling around the building. They were variously described by witnesses as “cussing,” “scuffling,” “fighting,” “shoving,” “grabbing,” and “yanking” in their efforts to keep workers from entering the building. Rowdies in the crowds apparently did not know who were laundry workers, for in at least one instance the woman being pushed and shoved was asked: “Do you work here?” We only mention a few of these incidents to show that the groups were not intent upon lawful, peaceful picketing which the law sanctions as a means for workers to further their cause, but instead were an assemblage of persons determined to do bodily injury, if necessary, to persons who might interfere with their objective.
The evidence discloses that for about an hour before plaintiff appeared the night watchman and some of the route drivers attempted to rescue and convoy several employees through the milling crowds. The night watchman, who was a former Wichita police officer, interrupted his convoying duties long enough to call the police station and inform it that he was unable to cope with the situation. When a police car arrived he made it clear to the officers he could not prevent the grabbing and shoving of women who were trying to enter the building. The five police officers, who were sent to the scene to preserve order, sat in their patrol car near by and did not see the physical violence taking place. We need not say that this inability of the police to see any need for their assistance was sufficient in itself to fasten liability upon the city for the acts of the mob, although in its answer the city joined issues on the question of the diligence or negligence of the police, in argument to the jury, and in special questions presently to be noted.
The plaintiff alleged that on August 30,1939, at 7:30 a. m. she attempted “in a quiet, peaceable, and lawful manner” to enter the Domestic Laundry Company building “to engage in the daily work where she was then employed”; that a “large crowd of people (approximately 40 to 50 persons)” gathered around the building and “acting in a tumultuous and riotous manner” assaulted, knocked down and inflicted serious injuries to her person; that “the existence of said mob and the commission of acts of violence existing at said time and place were well known to the police department . . •. prior to the time of the injuries to the plaintiff, and that said police department . . . failed and neglected and refused to use due diligence and care to prevent the . . . injury to the life and limb of the plaintiff.” Judgment for $10,000 damages for the injuries was asked. Prior to commencing action, plaintiff had submitted a claim to the city commission which had been denied after formal hearing. Copy of- the claim was made part of the petition.
The defendant denied generally all of plaintiff’s allegations and expressly denied “that either defendant, or its agents, servants, or employees, were guilty of any acts of omission or commission which in any manner contributed to or permitted any assault upon plaintiff, or any injury to plaintiff.” ' The case was tried before a jury which returned a verdict for plaintiff for $2,800 and answered special questions:
“1. Was the plaintiff injured as a result of the violence of a mob as defined under the instructions of the court in this action? A. Yes.
“2. Was the plaintiff the aggressor in the action actually resulting in the physical attack? A. No.
“3.o Was the conduct of the plaintiff such as to provoke the assault she alleges wag made upon her resulting in her injuries? A. No.
“4. Was the conduct of the plaintiff in arriving and attempting to enter her place of business that of a reasonably prudent person under the circumstances? A. Yes.
“5. On Tuesday, August 29, 1939, did the chief of police make any arrange ments with the laundry officials of the Domestic laundry for the protection of employees coming into and leaving the laundry plant? A. No.
“7. Did the police department use due diligence and care to prevent the injury to the plaintiff and other employees in the Domestic laundry? (‘Due diligence’ is defined in the instructions of the court.) A. No.
“8. If you answer question number 7 in the negative, state in what way the police department failed to use due diligence and care. (A. We feel that ‘an ounce of prevention would have been worth a pound of cure,’ or in other words, the orders given policemen were such that they could not offer protection to either side in the controversy. Especially they should have helped any citizen after having been asked ¡or help. We think they should have been out of their car patroling and mingling with pickets and persons to prevent fights starting, their closer presence to the activities—the mere sight of a uniformed officer would probably have made a big difference in the outcome of this case.”
Judgment was entered accordingly and defendant appeals, contending first that the trial court erred in not sustaining its motions to discharge the jury because of appellee’s “persistent use of repetition” in eliciting testimony, and that a new trial should have been granted for the further reason that instruction number 15 was “contrary to law and prejudicial to the rights of defendant.”
Appellant does not contend the jury did not have evidence sufficient to prove the injuries were inflicted by a mob as defined by G. S. 1935,12-201,12-202, or that the answer to special question 1, above, should be set aside. So, too, the answers to questions 2, 3 and 4 settle all dispute as to the propriety of Mrs. Carter’s determination to enter the Domestic Laundry Company building on the morning of August 30, 1939.
Proceeding next to the question whether the jury was prejudicially deterred from an objective determination of the issues of fact by the repetitious conduct of appellee’s counsel, or by the court in its instruction number 15 as the law in the case: It should be kept in mind that appellant did not demur or otherwise test plaintiff’s allegations that her injuries were caused by a mob, and although we are advised by supplemental specification of error that defendant demurred to the evidence, appellant’s case here reflects neither contention nor argument that plaintiff did not adequately establish a case which required the jury to determine whether the injuries were or were not caused by a mob. Consequently, our various definitions of a “mob,” and also the governmental philosophy underlying our mob statute as discussed in Koska v. Kansas City, 123 Kan. 362, 255 Pac. 57, and Maus v. City of Salina, 154 Kan. 38, 114 P. 2d 808, are irrelevant in the instant appeal, and the jury’s denomination of this assemblage as a mob is conclusive unless trial errors prejudicial to appellant’s rights were committed.
Touching appellant’s contention that frequent repetition of questions and reference to allegedly irrelevant evidence caused a miscarriage of justice in this case: The cases must be rare indeed which present such flagrant conduct of counsel in repeating questions to elicit testimony, the text of which is admissible, which would constitute reversible error on appeal. Repetitious practice of counsel, distinguished from admissibility of the evidence offered, to be far enough afield to generate prejudice in the minds of the jury which the trial' court did not detect, would almost be impossible to detect in a record on appeal. And it is at least arguable that the monotony of repeating questions by counsel, for the purpose of effectuating a ruse to mislead the jury, would prejudice the jury against the perpetrator rather than his adversary. Be that as it may, inasmuch as the instant controversy presented to the jury only a single issue to be determined, that of whether this assemblage of persons constituted a mob, we do not think it can be said, upon careful reading of the abstract, counter abstract, and supplemental abstract, that conduct of counsel caused the jury to be sidetracked and blinded by prejudice rather than guided by facts during its determination; and nothing in the record tends to show that the trial court abused its discretion in ruling on the objections interposed during the trial of the case.
We come now to appellant’s main contention—that the trial court’s instruction number 15 was erroneous and prejudicial. The trial court read twenty-eight instructions to the jury, pertinent paragraphs of which may be summarized as follows: number 7 made verbatim recital of our mob statute, G. S. 1935, 12-201, 12-202; number 10 fully defined the term “mob” as intended by our legislature in the mob statute; number 11 admonished the jury that if they should find from the evidence that plaintiff’s injuries were not received at the hands of a mob as defined in the instructions, their verdict must be for defendant; number 13 dealt with lawful picketing and the' duty of the police not to interfere so long as the picketing remains peaceful. Instructions 15 and 16 read as follows:
No. 15
“You are further instructed that the purpose of the statute, which has been referred to herein, is designed to prevent disorderly assemblages within the corporate limits, to require the police officers to take every reasonable means within their power to prevent assemblages which will cause injury or damage to persons or property, to act promptly so that an unlawful assembly shall not ripen into an actual riot, and, to take eveiy means necessary and proper to prevent injury or damage to persons or property.
“In this connection, you are instructed that if there were assembled at the place of plaintiff’s employment a group which by words threatening immediate violence, act or deed, violated or threatened immediately to violate the law in any particular, it was the duty of the police officers of the city of Wichita, whether actually present or not, to take immediate steps to disperse the assembly, thus preventing the assembly from ripening into a riotous mob, and thereby preventing injury to person or property.
“In this connection, you are instructed that if police officers were present at the time and place in question, and saw or could have seen, and knew or could have known, that the assembled persons were violating or threatening immediately to violate the law* as herein defined, and took no steps to disperse the assembly, or to prevent the injuries that thereafter followed to the plaintiff, if any you find, your verdict herein must be for the plaintiff and against the defendant.”
No. 16
“You are further instructed that you may take into consideration all of the facts and circumstances, including the fact that a strike was on, in determining whether the police department of the city of Wichita used due diligence and care to prevent injury to the plaintiff, and, if you find from the. evidence that the police officers of the city of Wichita used due diligence and care to prevent injury to the plaintiff, then you may consider such fact in mitigating damages, if any, which you may allow the plaintiff, if you find that she is entitled to recover.”
Appellant saved an objection to the instructions and specifically-attacked number 15 on the ground that it “advises the jury, in practically so many words, that if the police officers were present and could have prevented the injury, and failed to do so, then the jury must find for the plaintiff.”
We do not believe appellant was prejudiced by the instruction complained of. It should be here noted that although appellant leveled its attack upon the court’s instructions, all but instruction 15 have been omitted from its abstract. Upon the record, it may well be argued that instruction 15 did not clearly state how the police officers’ inertia should be evaluated by the jury. But when considered in conjunction with instructions 7, 10, 11, and 16, which defined for the jury what a mob is under our statute and decisions, any want of clarity in the criticized instruction was innocuous. In fact, in the light of what other instructions contained, the instruction complained of is against the appellee’s case more than it is the appellant’s. We think it is susceptible of the impression that the jury would have to find the injury was caused both by a mob and by the negligence of the police officers before it could find for plaintiff. However, even granting possible incongruity of instruction 15, the verdict should not be set aside because instructions 7, 10, 11, and 16 stated the law of the case correctly and the jury’s special findings are clearly consistent. (See: Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 90-91, 98 P. 2d 162; Jacobs v. Hobson, 148 Kan. 107, 111-112, 79 P. 2d 861; Forbes v. Railway Co., 101 Kan. 477, 479-480, 168 Pac. 314.) See, also, Marshall v. Home Mutual Ins. Co., 154 Kan. 488, 494, 119 P. 2d 529; Davis v. McCarthy, 52 Kan. 116, 34 Pac. 399, and cases cited.
In the brief and oral argument, counsel for appellant seek revaluation of its case upon the ground that an entirely new relationship of capital and labor has arisen during recent years which recognizes the right of striking workmen to practice peaceful picketing. Quite true, but as the paramount public 'interest is the welfare of the general public, the emphasis must be on the adjective and not on the noun. (31 Am. Jur., 952-955.)
The judgment of the trial court is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment admitting a will to probate.
On May 19, 1941, there was filed in the probate court of Pawnee county a petition of Nettleton M. Springer Schnack, for the probate of the will of Charles Schnack, who died May 1, 1941. The will need not be noticed in full. By its terms the testator devised and bequeathed “to my wife, Nettleton M. Springer Schnack,” all of his property, and he named her as the sole executrix of the will. In due time an answer and cross petition was filed by Friedericke Schnack, the mother of the decedent. She denied that Charles Schnack left a will and alleged he died intestate; she denied he left as his heir at law a widow, Nettleton M. Springer Schnack, and alleged he was an unmarried man at the time of his death and left his mother as his sole heir at law; she denied Charles Schnack executed the purported will, and she further denied that at the date the purported will was made there was any such person in being as “my wife, Nettleton M. Springer Schnack” mentioned in the will, and alleged that if the court should find the will was actually executed by the decedent, it should be held inoperative both as a testamentary disposition of his property and as the appointment of a personal represéntátive. In a negative way it. may be stated there was no allegation the decedent lacked testamentary capacity at any time. The cross petition is noticed only to say that it alleged Charles Schnack died intestate, leaving his mother as- his sole heir at law, and prayed for the appointment of an administrator.
The probate court heard the matter, denied the petition for probate of' the will, and appointed an administrator of the estate. An appeal was perfected to the- district- court and the matter was there heard on the- pleadings filed in the probate court. At that hearing, in the opening statement for the petitioner, counsel stated he thought there was only- one point involved, and th-at was whether Charles Schnack had executed the will. Counsel for Friedericke Schnack stated there were two issues—(1) that petitioner was not the wife, of the decedent, and (2) that the will was not executed by decedent. A great deal of evidence was received. Briefly stated, the scrivener of the will, who was a witness to it, and the other witness to the will, testified to the circumstances of its preparation and execution, but neither was asked the direct question whether at the time the testator was of sound mind and was not under any restraint. Other testimony was of expert witnesses who testified the signature to the will was or was not the signature of Charles- Schnack. At the conclusion of this testimony the trial court announced it found the instrument offered for probate was signed by Charles Schnack in the presence of two witnesses. Friedericke Schnack filed a motion for judgment notwithstanding the finding for the reason the pleadings and evidence adduced showed she was entitled to judgment. She also filed a motion for a new trial. On the. hearing of these motions it became apparent the principal reason asserted was that the petitioner had failed to- show the mental capacity of the decedent, when the will was made. The petitioner moved to reopen the case for further evidence on that point, and Friedericke Schnack objected. The case was reopened and further testimony was offered by the petitioner tending to show mental capacity. At the- conclusion of this testimony Friedericke Schnack announced she had no testimony to offer on that point. In connection with the motion for a new trial, an affidavit of so-called newdy discovered evidence was offered. Its substance wms that Charles Schnack, on April 24, 1941, had told the affiants he had made no will; that he had made provision for Maude (referring to Maude Springer) and that he wanted his property to go to his mother. Later, and on January 26, 1942, the trial court found the issues'’in favor of the petitioner and overruled the motion for judgment, and rendered judgment admitting the will to probate. A second motion for new trial was filed. At the hearing thereon the entire record was reviewed, and thereafter the motion was denied. The appeal to this court followed. The specifications of error cover the matters hereafter discussed.
Appellant contends the trial court erred in denying her motion for judgment. Our attention is directed to McCarthy v. Weber, 96 Kan. 415, 151 Pac. 1103, which holds in effect the burden of proof is on the proponent to prove due execution of the will and that the testator was of sound mind and not under restraint, and it is contended there was failure to make such a showing. It is true that at the first hearing no witness was asked direct questions as to whether Charles Schnack was of sound mind and memory and not under restraint, and whether he had knowledge of his property and the natural objects of his bounty, etc. The testimony did disclose that the scrivener of the will and who was a witness to it had known Charles Schnack since he was a boy, knew of his associations with the legatee named in his will, and had prepared the will at his request and direction. The other witness to the will testified not only as to the execution of the will, but to the fact that he maintained an office in the rear of a drug store conducted by her. It is to be borne in mind that Friedericke Schnack, in her written objection, had made no claim of incompetency, and in her opening statement in the district court had made no such,claim. We are inclined to believe that a prima jade showing was made. In any event, when by motion for judgment the question was specifically raised, the petitioner asked leave to open, which was granted, and testimony of which no complaint is made was offered by petitioner, and then Friedericke Schnack announced she had no testimony to offer on the point. The trial court did not abuse its discretion in opening the case for further evidence as to mental competency of the testator, nor in denying the motion for judgment.
It is also contended the trial court erred in finding the will was executed by Charles Schnack. Appellant directs our attention to In re Creger’s Estate, 135 Okla. 77, 274 Pac. 30, 62 A. L. R. 690, wherein it was said that proceedings to admit a will to probate are equitable in nature, and on appeal the supreme court would weigh the evidence but would not reverse unless the judgment was clearly against the weight of the evidence. That is not the rule in Kansas.
But if the rule contended for be applied here, no reversal would result on the question of execution. Appellant insists the testimony of one of its expert witnesses is conclusive. The abstracts disclose, however, that as part of petitioner’s main case two witnesses testified positively to seeing Charles Schnack sign his name to the will. Respondent then showed by two bankers and an avowed handwriting expert that in their opinion the name signed to the will was not the genuine signature of Charles Schnack. In rebuttal two other avowed handwriting experts testified that in their opinion the signature was genuine. Were this court to weigh the evidence, it could not say the judgment that the will was executed by Charles Schnack was clearly against the weight of the evidence.
The rule in Kansas, stated repeatedly, is that in a will contest, where there is conflict in the testimony with respect to due execution of the will, mental capacity of the testator, etc., and findings thereon are made by the trial court, if such findings are based upon substantial competent testimony they are conclusive on appeal to this court. See, among other cases, McCarthy v. Weber, supra; Bell v. Skinner, 119 Kan. 286, 239 Pac. 965; Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580; Gilpin v. Burch, 145 Kan. 224, 65 P. 2d 308; Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825.
Under separate headings appellant contends the trial court erred in holding that petitioner was the person intended as the legatee in the will, and in considering any evidence to identify her. An understanding of these contentions requires reference to the record.
The testator had lived for years at Larned, Kan. On the day the will was executed he met Estelle V. Ingels, with whom he had been acquainted since he was a boy. She was a former court reporter and a duly admitted attorney at law. In response to a question as to his health he stated he didn’t think he would ever get well, and he asked her to fix up something to protect Maude, as she was known to her friends, and referring to Miss Springer. She told Schnack that Miss Springer ’should be identified in some way and he directed her to write it as “Nettleton Maude Springer Schnack, his wife.” It may here be said the trial court, in deciding the case, stated it did not consider the oral testimony offered without objection as to the conversation between the testator and the scrivener at the time of the preparation of the will. She prepared the will in question and that evening she met him and he went with her to the Lynch Drug Store, where Schnack maintained his office, and where the will was executed in the presence of Mrs. Ingels and Miss Lynch. The trial court heard evidence concerning the relations existing between Nettleton M. Springer and the testator, their business relations, years of acquaintance and their close associations, the details of which will not be set forth, and found, as was conceded, that at the time the will was executed, and thereafter, Nettleton M. Springer was not the wife of the testator and had not lived with him in a relationship such as would be considered his wife at his death, but in the opinion of the trial court, she was,the party-described in the will as beneficiary and executrix. The substance of appellant’s complaints is that Nettleton Maude Springer was not the wife of Charles Schnack; that the gift was to “my wife” and she does not fit the description, and that the court erred in admitting testimony of identity. It may here be observed that if appellant’s contentions are sustained, there is no gift of the estate to anyone and Charles Schnack died intestate, except as possibly he appointed an executrix.
The question is one of construction of a will. In Zabel v. Stewart, 153 Kan. 272, 276, 109 P. 2d 177, it was said:
“It is settled in this state that the fundamental rule for construing a will is that the intention of the testator is to be gathered from the instrument as a whole, and that intention must prevail if it is consistent with the rules of law. (See Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569, and cases cited.) Generally the will should be upheld where possible (Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682); should be construed to avoid intestacy, if possible (Johnson v. White, 76 Kan. 159, 90 Pac. 810), the supreme test being to determine the actual intention of the testator (Thornberry v. Fletcher, 91 Kan. 744, 139 Pac. 391), although it has been said there is no occasion for employing rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P. 2d 269). Many other cases may be found, but those cited are illustrative of the rules stated.”
Later cases to the same effect are Tomb v. Bardo, 153 Kan. 766, 769, 114 P. 2d 320; Whitsitt v. Mulkey, 154 Kan. 138, 114 P. 2d 836; Dyal v. Brunt, 155 Kan. 141, 147, 123 P. 2d 307.
Although there is some complaint the court received incompetent evidence to prove identity, the record as abstracted shows no objection. In discussing her contention the trial court erred in considering evidence of identity, appellant directs our attention to authorities from other jurisdictions and to Guthrie v. Guthrie, 130 Kan. 433, 435, 286 Pac. 195, where it was said that generally speaking evidence as to the testator’s intention, separate and apart from the language of the will, is not admissible in interpreting the will, although that case recognizes the rule that in determining intention, the will is to be read in- the light of the circumstances under which it was written, which include the nature and amount of the testator’s estate and his relation to his family and named beneficiaries. Substantially the same was the holding in Ernst v. Foster, 58 Kan. 438, 49 Pac. 527.
In Smith v. Holden, 58 Kan. 535, 50 Pac. 447, it was held that parol evidence may be received to show that an instrument was intended as a will, and to ascertain the subjects and objects of the testator’s bounty.
In Wilson v. Stevens, 59 Kan. 771, 51 Pac. 903, in a per curiam opinion reported only in the Pacific Reporter the trial court bad found that the testator meant by the designation of Ollie and Florence as his children, his daughter Viola and his son Alonzo. The evidence showed that Viola was known by the family as “Olie” or, as the scrivener wrote it, “Ollie.” Other evidence showed the scrivener thought the testator called one child “Florence” although he may have misunderstood; that the testator referred- to the child’s residence as being in the neighborhood of Wichita, where the son Alonzo did actually live. In the opinion it was said:
“The authorities allow the identity of persons misnamed in wills to be ascertained by parol evidence of facts and circumstances. Hence the evidence upon which the finding in question was based was property received.” (p. 901)
In Cummins v. Riordon, 84 Kan. 791, 115 Pac. 568, it was held that parol evidence was admissible to identify lands devised by ascertaining to what tract the description applied.
In Phillipson v. Watson, 149 Kan. 395, 87 P. 2d 567, the admissibility of extrinsic evidence to aid construction of a will was before the court, and it was there held:
“In construing a will the primary rule to be followed is the will itself, the language used in it, and all parts of it. Evidence tending to show the situation of the testator at the time the will was executed, the nature of his business, the extent of his property, and his family or relatives, may be received if helpful in identifying property or beneficiaries, or to clarify language used by the testator, but not to change the will. Evidence respecting matters which occurred after the will was executed, and particularly after it was probated and the estate administered under it,'is incompetent as bearing upon the construction of the will.” (Syl. If 3.)
In Stout v. Hosmer, 123 Kan. 697, 257 Pac. 223, where the testator left property to a trustee to be paid to the person or persons who took care of him, etc., it was held to be sufficient if the beneficiary is designated with reasonable certainty, and that such beneficiary could be identified by parol evidence. A like result in a similar case was reached in Farley v. Fullerton, 145 Kan. 760, 67 P. 2d 525. And as bearing on the question see the leading case of Women’s Foreign Miss. Soc. v. Mitchell, 93 Md. 199, 48 A. 737, 53 L. R. A. 711, dealing with effect of misnomer of a beneficiary, and also 4 Page on Wills 643, sec. 1622 et seq., 1 Bartlett’s Kansas Probate Law and Practice, § 398, p. 372 et seq., 69 C. J. 161, and 28 R. C. L. 270.
Without pursuing the matter further, we are of opinion the court did not err in considering the evidence to identify the legatee named in the will.
But appellant insists that because he referred to the beneficiary as his wife, and concededly she was not, she did not fit the description of the beneficiary in the will and hence cannot take. Many cases may be found holding that where there is a conflict between the name and description of the beneficiary, there exists a latent ambiguity removable by extrinsic evidence. See the annotation on “Admissibility of Extrinsic Evidence to Aid Interpretation of Will,” 94 A. L. R. 26, 104. Under such a rule any ambiguity in the will before us was explained by the evidence received. In In re Chambers’ Estate, 112 Misc. Rep. 551, 183 N. Y. S. 526 (affirmed without opinion 196 App. Div. 934, 187 N. Y. S. 930), it was held that where a testator when making a will states a relationship he knows does not exist, but adds the name of the object of his bounty, he is deemed to have done so with knowledge of the nonexistence of the relationship. In our opinion more significance should not be given to the words “my wife” than to the name of the person designated as the object of the testator’s bounty.
The trial court found the will was not ambiguous, and in that we are inclined to agree, for its terms are clear and no doubt arose as to beneficiary and executrix until appellant claimed that the person named was not the wife of the testator. Conceding that doubt or uncertainty arose upon proof or admission the named beneficiary was not the wife, then under the authorities extrinsic evidence was admissible, not to vary the will, not to make a will, but to ascertain what person the testator meant. The proof, aside from that of the scrivener of the will, was ample, and no complaint is made that it wasn’t. The complaint is only that it should not have been considered. Although the trial court did not consider the scrivener’s testimony as to the conversation preliminary to the execution of the will, and in which the testator gave instructions, we think it might well have been considered. But if it were considered, it would only strengthen the conclusion reached by the trial court.
The purpose of the judgment was tó determine the intention of the testator as to his beneficiary, and its effect was to prevent ■intestacy. The judgment is supported by competent and substantial testimony.
In connection with her contention the trial court erred in denying her motion for a new trial, appellant presents some of the matters heretofore discussed. In addition our attention is directed to the affidavit filed in support of the motion and in which the affiants stated the decedent told them shortly before his death he had made no will. The journal entry as abstracted shows that on the hearing, the whole record was before the court, arguments were made and the motion overruled. The newly discovered evidence, if it was in fact such, only tended to supplement evidence that the will had not been executed by Charles Schnack. It did not compel a new trial, for there was nothing about it that would lead to a conclusion the facts stated might or probably would alter the judgment.
There is also some argument the judgment is erroneous because Nettleton M. Springer Schnack not being the wife of Charles Schnack, the probate court will not know whom to appoint executrix of the will.’ The same testimony which determined identity of beneficiary determined identity of executrix. In any event, if the will is good, it does not concern appellant who is appointed to execute the will.
The j udgment of the trial court is affirmed.
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'The opinion of the court was delivered by
Harvey, J.:
The above cases present different phases of the same general controversy and because of their public importance were advanced and heard together. The pertinent facts shown by the record before us may be stated briefly as follows: The tenth judicial district in this state is composed of the counties of Johnson and Miami, and the duly elected, qualified and acting judge of the court is the Hon. G.'A. Roberds. On January 5, 1942, the opening day of the January term of the district c.ourt of Johnson county, there were pending in that court four criminal cases for trial or other disposition at that term. In two of the cases informations had been filed charging Frank D. Hedrick, Jr., while holding the office of county attorney of that county (which position he had resigned in September, 1941, as shown by the records of this court), with having feloniously accepted bribes from Frank T. Dugan and Homer Demming, under an agreement by which the county attorney was to permit them to operate gambling devices in Johnson county in violation of law without being interfered with by the prosecuting officers of the county. In two of the cases Frank D. Hedrick, Sr., father of the former county attorney and a practicing lawyer in that court, was ■charged with acting with Dugan and Demming in giving the bribes and making the unlawful agreement respecting the operation, unmolested, of the gambling devices. Upon the calling of the docket on the opening day of court Judge Roberds set other criminal cases for trial and advised counsel he would confer with them at two o’clock with reference to the Hedrick cases. At that conference Judge Roberds advised counsel that he planned, on his own motion, to make an order changing the venue in those cases from Johnson county to Shaw.nee county, which is not in his judicial district nor in an adjoining judicial district, and that the order would be made on January 10. On that day the court made the following order in each of the four cases:
“Whereas, It has become personally known to the undersigned, judge of the tenth judicial [district] court, comprising the district court of Johnson county and the district court of Miami county, that, subsequent to the arrest of the defendant herein, there has followed an unusual and very extensive amount of publicity concerning said defendant and the charges filed against him, which publicity appeared in many issues of the newspapers of said district, and also in the metropolitan newspapers which are extensively distributed and read through said district; that in addition thereto, great interest has been shown and a great amount of discussion had concerning said case throughout said district, and opinions have been freely expressed concerning the same; all to the extent and degree that it appears to the undersigned that the inhabitants of said district are so prejudiced against said defendant that a fair trial cannot be had of this case in said district.
“Therefore, because of said facts which are within the knowledge of the undersigned that such facts do exist which would entitle the defendant to have an application for removal of said cause from said district sustained, had such application been filed herein; that by reason of the personal knowledge of such facts which are possessed by the undersigned; it is by the court ordered, on the court’s own motion, that the further hearings and the trial of said cause be transferred from the district court of Johnson county, Kansas, to the district court of Shawnee county, Kansas, where such prejudice is not alleged to exist.
“It is by the court further ordered that said defendant enter into a recognizance in the sum of $1,000 for his appearance to answer to the charges contained in the information herein filed against him, in the district court of Shawnee county, Kansas.”
The transcript of the proceedings disclosed that Frank D. Hedrick, Jr., and Frank D. Hedrick, Sr., were present in person and by their attorneys, and that the state of Kansas was represented by its counsel; that one of the attorneys for defendants, in open court, announced :
“The defendants, Frank D. Hedrick, Sr., and Frank D. Hedrick, Jr., agree to this and waive and do not have any constitutional objections to the transfer from this county to Shawnee county.”
Counsel for the state, in open court, objected to the order made by the court and reserved the question on the part of the state on the ground that there is no evidence before the court such as is contemplated by the statute or by our decisions on which such an order can be made; that no application had been made by defendants for such change of venue, and on the further ground the court has no legal right to make the order under any statute.
The defendants executed the bonds for their appearance in the district court of Shawnee county, as provided by the court’s order, whereupon the court set aside bonds defendants previously had given for their appearance in the district court of Johnson county. In compliance with this order the clerk of the district court of Johnson county prepared the necessary papers arid certificates and sent them to the clerk of the district court of Shawnee county, where they were received on January 15, 1942. The clerk of the district court of Shawnee county accepted the papers, filed them, and gave them docket numbers. In due time thereafter the judges of the three divisions of the district court of Shawnee county sitting together had a conference with counsel for the state and defendants and their counsel at which there appears to have been an informal discussion as to whether the district court of Shawnee county had jurisdiction of the cases, and if so, how they would be handled. The judges took the matter under advisement and on February 17, 1942, made the following order in each of the cases:
“Now, on this 17th day of February, 1942, there comes on for consideration the jurisdiction of this court to hear and determine this cause on the record of change of venue in the above-entitled case as made by the district court of Johnson county, Kansas. After an examination of the order of transfer and change of venue of said action, we are of the opinion that said order is irregular and not in accordance with the law and confers no jurisdiction upon the district court of Shawnee county, Kansas, to hear and determine said cause, and that said action should be remanded to the district court of Johnson county, Kansas, for further proceedings.
“It is, therefore, considered, ordered, adjudged and decreed that the above-entitled action should be, and the same is, hereby, remanded to the district court of Johnson county, Kansas, and the clerk of this court is hereby directed to transmit a certified copy of this order to the clerk of the district court of Johnson county, Kansas, together with the file and record of this case.”
These, and all the papers in the cases, were sent by the clerk of the district court of Shawnee county to the clerk of the district court of Johnson county. Upon their receipt there Judge Roberds advised the clerk of the district court of Johnson county not to redocket the cases, but simply to hold the papers pending further action by the district court of Shawnee county.
The defendants, Frank D. Hedrick, Jr., and Frank D. Hedrick, Sr., appealed from the order of the district court of Shawnee -county remanding the cases to the district court of Johnson county, and their appeals are docketed here as Nos. 35,598, 35,599, 35,600 and 35,601.
On January 20, 1942, counsel for the state filed in the district court of Johnson county a motion that the Hon. G. A. Roberds, judge of that court, disqualify himself as to all matters in the Hedrick cases for reasons stated therein. On January 21, 1942, Judge Roberds made an order striking this motion from the 'files upon the ground that the court had no jurisdiction over the cause, nor over the defendants, and no jurisdiction to hear and to determine any matter or thing relative to said cause, including said motion. The state reserved the question and appealed from the order of the court striking its motion from the files and holding it had no further jurisdiction. These appeals bear the'docket numbers in this court 35,593,, 35,594, 35,595 and 35,596.
On February 27, 1942, and before the papers in either of the appeals previously mentioned reached this court the state, on the relation of the attorney general and the county attorney of Johnson county, filed in this court an original proceeding in mandamus against Judge Roberds asking that defendant be directed to withdraw or set aside the order striking the motion filed by the state to disqualify himself and to determine such motion when properly presented, and further directed defendant to disqualify himself for the trial of those cases and certify said disqualification to this court; that the court interpret the pertinent statutes as they apply to the duties of the defendant, and for such other relief as is deemed proper. In his proceeding Judge Roberds, pro se, has filed an answer.
Before taking up the mandamus proceeding perhaps it will avoid confusion if we discuss the legal questions presented upon the two groups of appeals, one by defendants from the order of the district court of Shawnee county of February 17, 1942, and the other by the istate from the order of the district court of Johnson county of February 21, 1942. In doing so we shall speak of the parties as they appeared in the trial court, the state on the one side and the defendants, meaning both of them, on the other. While each group of appeals includes’ four cases, two against each of the defendants,, there is no purpose in treating the cases separately, since they give rise to the same legal questions; indeed, the two groups of appeals present important legal questions in common.
While not cited in the order of Judge Roberds made on January 10 it is clear from the record as a whole that he made the order under the authority, or supposed authority, of G. S. 1935, 62-1322, which reads:
“Whenever it shall be within the-knowledge of a court or judge that facts exist which would entitle a defendant to the removal of any criminal cause on his application, such judge or court may make an order for such removal without any application by the party for that purpose.”
Counsel for the state contend this section of our statute is void as being in conflict with that portion of section 10 of our bill of rights, which reads:
“In all prosecutions, the accused shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, ...”
In the alternative they contend, if the section is not void, that the order made is voidable and should be set aside on the state’s motion.
Counsel for defendants argue that (1) the district court of Shawnee county had no power to remand the cases unless the order made by Judge Roberds is absolutely void; (2) that the statute just quoted authorizes the order made, if the defendants consented; and (3) that the order was in all respects regular, and that the court of Johnson county and defendants complied with all statutory prerequisites, including the giving of bonds to appear in the district court of Shawnee county.
These questions are argued from several viewpoints.
Before taking up the specific questions argued some general discussion may be helpful.
Subject to constitutional restrictions, a change of venue is a matter of statutory regulation. (22 C. J. S. 300.)
It has been said: “A change of venue is a wrong to the public, unless the necessities of justice to the defendant require it.” (See City of Emporia v. Volmer, 12 Kan. 622, 627; also State v. Stark, 63 Kan. 529, 66 Pac. 243.)
The history of our statutes relating to change of venue in criminal cases is as follows: Our first territorial legislature, 1855, composed largely of former residents of Missouri, enacted as the statutes of the territory of Kansas practically all of what was then the General Statutes of Missouri. Included in those so adopted was chapter 129, article 5, §§ 15 to 39, relating to change of venue in criminal cases. The territorial legislature of 1859 repealed all the laws enacted by the legislature of 1855 (Laws 1859, ch. 89, § 1), but the same legislature enacted a code of criminal procedure, including the same sections of the statutes of 1855 relating to change of venue (Laws 1859, ch. 27, §§150 to 174), and these were carried into General Laws 1862 as chapter 32, and with a few amendments into the General Statutes of 1868, as chapter 82, §§ 172 to 196, and are now G. S. 1935, 62-1316 to 62-1340. For brevity, we shall later refer to them by the section numbers. The action of the legislatures of 1855 and 1859 of adopting or repealing statutes in bulk does not indicate careful consideration of individual sections, and the question of the constitutionality of 62-1322, as we have it here, could not have been considered by the legislature of 1855 or of 1859, for our constitution came into effect later. The Kansas territorial government was functioning under the organic act of May 30, 1854, which did not include section 10 of our bill of rights. Perhaps the sixth amendment of the United States constitution, which contained a similar provision, should have been taken into account; but we pass this thought, since it has not been argued.
Respecting a change of venue in criminal cases, our statute, 62-1316, relates to a situation where the presiding judge is charged with an offense; 62-1317 relates to what shall be done when the presiding judge is near of kin to defendant, or the offense is charged to have been committed against the person or property of the judge or his near of kin, or when the judge is in anywise interested or prejudiced, or shall have been of counsel in the cause. In State v. Knapp, 40 Kan. 148, 19 Pac. 728, it was said of this statute as it relates to section 10 of our bill of rights:
“If the statute purporting to authorize a change of venue was intended to permit the state to change the trial against the objection of the accused, it is in conflict with the bill of rights, and therefore void.” (p. 150.)
We shall not stop to consider whether this section, 62-1317, is wholly void because its language permits the court to rempve the case over the objection of defendant, or of the state, or of both, since that specific question, is not before üs. Our own research discloses but one of our cases, In re Edwards, 35 Kan. 99, 10 Pac. 539, in which the court attempted to act under 62-1317, and perhaps 62-1322, on its own initiative. The court’s authority to do so was not involved when the case reached this court, but in stating the history of the case (p. 103) the opinion discloses that the information was filed one day before the beginning of the May, 1885, term of the district court of Sumner county. At the May term, and over the objection of the state and the defendant, the court made an order removing the case for trial to Cowley county, in another judicial district, upon the ground that the court was disqualified to preside at the trial on account of his prejudice. This order was vacated later upon the motion of the county attorney of Sumner county. We do observe the situations set out in 62-1317 are almost universally recognized in this country as disqualifying a judge to preside over the trial when any of them exist. The importance to litigants and to the public of an unbiased, disinterested presiding judge has been asserted repeatedly by the courts and judicial writers. (See 33 C. J. 988; 15 R. C. L. 530, and Am. Dig., Judges, §39 et seq.) The statute, 62-1317, outlines no procedure to be followed. In part, at least, this action seems to be superseded by a later enactment, G. S. 1935, 20-311a, which provides for the appointment of a judge pro tern in such cases. Following the procedure outlined by the statute, the constitutional rights of the defendant under section 10 of the bill of rights are not disturbed; and since its enactment the statute has been used repeatedly in both civil and criminal cases (see State v. Stiff, 148 Kan. 224, 80 P. 2d-1089), and, as we will later see, is recognized as applicable in the case before us.
Sections 62-1318 to 62-1321 relate to prejudice of inhabitants. They read (italics ours):
“62-1318. Any criminal cause pending in any district court may be removed by the order of such court, or the judge thereof, to the district court of another county in the same district, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein.
“62-1319. Whenever it shall appear, in the manner hereinafter provided, that the inhabitants of the entire district are so prejudiced against the defendant that a fair trial cannot be had therein, the cause shall, by order of the court or judge, be removed to another district, in which such prejudice is not alleged to exist.
“62-1320. Such order of removal as specified in the two preceding sections shall be made on the application of the defendant; or, where the defendant is under the age of sixteen, on application of the parent or guardian of such infant; and if the infant has no parent or guardian, then on the application of any two respectable citizens of the county where the cause is at issue.
“62-1321. In the petition for a change of venue the applicant shall set forth the facts upon which the application is made, and the truth of the allegations in the petition shall be made to appear, by affidavits, to the satisfaction of the court. Notice of such application must be given to the county attorney, who may resist such application by counter affidavits.”
These statutes present a definite outline of procedure to be followed in determining whether or not the minds of the inhabitants of a county or district are so prejudiced against defendant that a fair trial cannot be had. It must be done upon the “application of the defendant.” (62-1320.) The petition for the change “shall set forth the facts upon which the application is made.” Notice must be given to the county attorney, who may resist the application, and the hearing is to be before the court upon affidavit to determine the facts alleged in the application. (62-1321.) That is the only way provided by statute for determining whether the minds of the inhabitants of the county are so prejudiced against defendant that he cannot have a fair trial. It has been the method followed throughout the history of our state, as the following list of cases, not intended to be complete, shows: State v. Horne, 9 Kan. 119; State v. Bohan, 15 Kan. 407; State v. Winner, 17 Kan. 298; State v. Rhea, 25 Kan. 576; State v. Furbeck, 29 Kan. 532; State v. Knadler, 40 Kan. 359, 19 Pac. 923; State v. Reno, 41 Kan. 674, 21 Pac. 803; State v. Daugherty, 63 Kan. 473, 65 Pac. 695; State v. Parmenter, 70 Kan. 513, 79 Pac. 123; State v. Bassnett, 80 Kan. 392, 102 Pac. 461; State v. Stewart, 85 Kan. 404, 116 Pac. 489; State v. Mullins, 95 Kan. 280, 147 Pac. 828; State v. Kagi, 105 Kan. 536, 185 Pac. 62; State v. Welch, 121 Kan. 369, 247 Pac. 1053; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Taylor, 137 Kan. 280, 20 P. 2d 628.
Several of our cases stress the necessity of following these statutes to determine the question of whether the minds of the inhabitants are prejudiced against the defendant. In City of Emporia v. Volmer, 12 Kan. 622, Justice Brewer, for the court, had occasion to comment upon our statutes, relating to change of venue in criminal cases. In the opinion it was said:
“Sections 174 to 177 (now 62-1318 to 62-1321), inclusive, apply to cases where the application is based upon the prejudice of the inhabitants.” Section 178 is quoted without comment. “Those sections referring to a change of venue on account of the prejudice of the inhabitants recite that ‘Whenever it shall appear, in the manner hereinafter provided,’ etc., and that manner is thereafter provided to be by petition, disclosing the facts, and verified by affidavit.” (p. 625.)
In State v. Furbeck, 29 Kan. 532 (opinion by Brewer, J.), it was held:
“Before a court is justified in sustaining an application for a change of venue on account of the prejudice of the inhabitants of the county, it must affirmatively appear from the' showing that there is such a feeling and prej -udice pervading the community as will be reasonably certain to prevent a fair and impartial trial.”
And this was specifically followed and applied in State v. Daugherty, 63 Kan. 473, 65 Pac. 695.
In State v. Parmenter, 70 Kan. 513, 79 Pac. 123, it was said:
“It is not enough that prejudice against the defendant exists; but as the statute provides, it must exist to such an extent ‘that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein.’ (Crim. Code, § 174.)” <p. 515.)
In State v. Bassnett, 80 Kan. 392, 102 Pac. 461, it was said:
“Section 177 of the criminal code requires that where proof is made by affidavits they must be to the satisfaction of the court, . . .” (p. 395.)
In State v. Welch, 121 Kan. 369, 247 Pac. 1053, it was said:
“The statute which permits application to be made for change of venue ■on the ground the minds of the inhabitants of the county are so prejudiced .against defendant that a fair trial cannot be had in the county, requires the petition to set forth the facts on which the application is based. (R. S. 62-1321.) It is not enough that the' petition state prejudice exists and a. fair trial cannot be had. Specific facts and circumstances showing prejudice must be stated, and not conclusions. (State v. Knadler, 40 Kan. 359, 19 Pac. 923.)” (p. 372.)
In State v. Taylor, 137 Kan. 280, 20 P. 2d 628, it was said in the opinion:
“The statute provides that a defendant is entitled to a change of venue where the minds of the inhabitants of a county are so prejudiced against him that a fair trial cannot be had, and the question is to be determined as pro-vided in a later section of the criminal code. (R. S. 62-1318.) The procedure .•and the kind of proof to be applied on an application of that kind is set forth in a later section, namely, R. S. 62-1321 [which is quoted].
“So we see that the decision of the court is to be based upon affidavits and •counter affidavits. The proof is to be made under the sanctity of an oath, not upon mere street talk or unsworn statements of unidentified people whose names are not to be revealed to anyone.” (p. 284.)
It will be observed that under these statutes it is the defendant only who -can make the application for a change of venue on account of the prejudice in the minds of the inhabitants of the county. Counsel for the state have no authority to do so. (State v. Knapp, 40 Kan. 148, 19 Pac. 728.)
Following the sections last quoted is section 62-1322, quoted ■earlier in this opinion. We will now take up the specific questions .argued as they relate to this section. The first of these is its con stitutionality. As previously noted, it was taken verbatim from the General Statutes of Missouri in force in 1855. We are cited to no case, and our own research has disclosed none, in which this statute was ever used in Missouri, or its constitutionality called into question. However, about that time the state of Arkansas had an identical statute. It also had a section of a bill of rights identical with section 10 of our bill of rights. In Osborn v. State, 24 Ark. 629 (1867), it was specifically held that the statute was void. The syllabus reads:
“The 134th sec., chap. 52, Gould’s Dig., providing that the judge of the circuit court may remove a criminal cause to another county, is in violation of sec. 11, art. 2, of the constitution, which declares that in prosecutions by indictment or presentment, the accused has a right to a speedy public trial by an impartial jury of the county or district in which the crime may have been committed, and is therefore void.”
In 1874 that section of the constitution of Arkansas was changed by inserting the following:
“Provided, That the' venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is or may be prescribed by law.” (Arkansas Const, of 1874, art. 2, sec. 10.)
Soon after this decision Missouri changed its statute so as to require an application by defendant for a change of venue on the ground the minds of the inhabitants of the county were so prejudiced he could not have a fair trial, and to support the application by the affidavit of defendant and two or more creditable, disinterested citizens of the county. This statute provided reasonable notice in all cases to the prosecuting attorney, and further provided “that if the facts alleged as the ground of the application be within the knowledge of the court or judge, he may order the removal of the cause without any further proof.” With some amendments, not pertinent here, this is the present law of Missouri. (See Rev. Stat. Mo. 1939, § 4019.)
The case of Ex parte Slater, 72 Mo. 102 (1880), throws some light upon the question before us. There it appears that the constitution of 1865 contained a provision (art. 11, sec. 12) which reads:
“The general assembly shall provide by law for the indictment and trial of persons charged with the commission of any felony, in any county other than that in which the offense was committed, whenever, owing to prejudice or any other cause, an impartial grand or petit jury cannot be empaneled in the county in which such offense is committed.”
The constitution of 1875 omitted that section. Both constitutions contained provisions to the effect that one charged with crime should be indicted and had the right tó be tried in the county where the offense was committed. While the constitution of 1865 was in effect the legislature had passed an act authorizing an indictment to be found in another county under the circumstances as authorized by the provision of the constitution of 1865, just quoted. After the constitution of 1875 had been adopted Slater was indicted by a grand jury of an adjoining county and brought habeas corpus for his discharge. It was held:
“Under the present constitution (art. 2, § 12) an indictment for felony can be found, as at common law, only in the county in which the offense was committed. .Section 1804, Revised Statutes, which undertakes to authorize the grand jury of another county, under certain circumstances, to find the indictment is, therefore, unconstitutional and void.” (Syl.)
In Lewis M. Kirk v. The State, 41 Tenn. (1 Coldwell), 344 (1860), a statute provided in substance that in selecting a jury in a criminal case, if the court is of the opinion that a fair and impartial jury cannot be had in the county, the court may change the venue to another county. After examining 700 jurors and finding only eight qualified, the court made an order changing the venue to another county. On appeal it was held the statute was in conflict with article 1, section 9, of the constitution, tantamount to section 10 of our bill of rights, and was inoperative and void.
In Wheeler v. The State, 24 Wis. 52, a statute provided for a change of venue on the motion of the county attorney. It was held this violated article 1, section 7, of the constitution, tantamount to section 10 of our bill of rights and was void, citing Osborn v. State, 24 Ark. 629.
In State v. Black, 131 Ore. 218, 282 Pac. 228, defendant, charged with murder, applied for a change of venue, which was denied. A trial resulted in a hung jury. Thereafter the court, on its own motion, changed the venue to another county. It was held the order was void under article 1, section 11 of the state constitution and the sixth amendment to the United States constitution guaranteeing defendant a trial in the county where the offense was committed.
In this state the statute (62-1322) has had but little use. In a general statement concerning our statutes relating to the change of venue it was quoted without comment in City of Emporia v. Volmer, 12 Kan. 622. It appears to have been used in combination with an ■oral application of defendant for a change of venue in State v. Potter, 16 Kan. 80, where the court held (p. 95) the order made was so irregular it should have been set aside on the motion of the county attorney, or even perhaps upon the motion of the defendant. It appears to have been used by the court in In re Edwards, Petitioner, 35 Kan. 99, 10 Pac. 539, but as the court later set aside the order on the motion of the county attorney no question involving the statute was presented to this court. It was relied upon as authority for the action of the court in In re Oberst, 133 Kan. 364, 299 Pac. 959, where, after three trials of one charged with the murder of seven people, an order was made, over defendant’s objection, removing the case for trial to another county of the same judicial district. It was held the order was in violation of section 10 of our bill of rights and was void. In the case of State v. Taylor, 137 Kan. 280, 20 P. 2d 628, where defendant had made an application for a change of venue and there were affidavits and counter affidavits upon the bearing of his petition, the court made an independent investigation the result of which he used in denying the petition for the change of venue. Counsel for the state sought to justify the order as being based upon the judge’s knowledge of facts authorized by section 62-1322. The court declined to take that view, and in the opinion, after quoting the section, it was said:
“That section has application in certain cases, as for instance, where a judge las been of counsel in the case, or by reason of his relationship to the defendant, or as a material witness in the case, or where all parties are in agreement that such prejudice exists in a county against the defendant that a change ■of the place of trial must be granted as a matter of course.” (p. 285.)
It will be noted that the first three things mentioned are grounds •of the disqualification of "a judge, either specifically or of the type referred to in 62-1317. The last one embodies an agreement between court and counsel on both sides, which appears to be foreign to any •of the statutes.' Normally, of course, litigants may agree to many things which might not be enforced upon one of them as a matter of law. The specific question of the constitutional validity of this statute has never heretofore been raised or decided by this court. Rut under our cases just cited in the Oberst case and State v. Taylor the section of the statute as it reads is void, for it makes no exceptions or limitations removing the situations held invalid from the operation of the statute.
Counsel for defendants cite and rely heavily on State v. Turling ton, 102 Mo. 642, 15 S. W. 141, where one paragraph of the syllabus reads:
“It is discretionary with, the court to order a change of venue on its own motion and without an application therefor founded on the proviso in section 4156, Revised Statutes, 1889.”
They italicise the words “and without an application therefor.” Obviously that language is inept. The proviso referred to in the section cited (Rev. Stat. of Mo., 1939, § 4019), does not authorize a change of venue without application. In fact, there has been no statute of the state of Missouri, so far as we can find, which authorized a change of venue without an application, for more than sixty years. The statute referred to specifically required an application. The proviso simply authorized the court to grant the application without proof required by other portions of the section if the court or judge knew the facts alleged in the application. In that case there had been an application for a change of venue supported by one affidavit when the statute required at least two. In addition to that application there had been a motion filed with the court to dispense with further proof for the reason that the facts alleged in the application were within the knowledge of the trial judge. The court did not think so and denied the application.
Counsel for defendants also rely heavily on the Texas cases, but the Texas constitution (art. 7, §14, 1845), and the constitution of 1866, provides:
“The legislature shall provide for a change of venue in civil and criminal cases; . . .”
The same provision is in article 12, section 10 of the constitution of 1868, and in article 3, section 45 of the constitution of 1876, which ' provides;
“The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law, and the legislature shall pass laws for that purpose.”
Under the authority of these constitutional provisions the legislature of Texas has enacted statutes construed by the courts of that state to authorize a trial court to change the venue upon the application of the defendant or of the state, or upon the court’s own motion when certain things are found to exist.. We have no such constitutional provision or such statutes in this state, hence the Texas decisions are not in point.
Counsel for defendants do not contend the statute (62-1322) is valid if the language used in it is given its ordinary meaning. They do contend, however, that an order made under it is valid if consented to by defendant. They argue that in In re Oberst, supra, the court held the order void when objected to by defendant, and that this is tantamount to a holding that it would be valid if agreed to by defendant. That conclusion does not follow. The court dealt with the question before it and did not attempt to do more. Observe, there has been read out of the language of this section the authority of the court to make the order if the defendant objects (In re Oberst, supra), and read out of it the authority of the court to ignore the provisions of the statute (62-1318 to 62-1321), which require a petition by defendant and a hearing by the court upon notice in order to change the venue from the county in which the information was filed to another of the same judicial district, or to a county outside of the judicial district, and to make such an order on “street talk.” (State v. Taylor, 137 Kan. 280, 285, 20 P. 2d 628.) We think the situation presented is much like that which arose in State, ex rel., v. School Fund Commission, 152 Kan. 427, 103 P. 2d 801, where the validity of a statute purporting to authorize refunding of bonds before they were due was before the court. It was said:
“If construed as requiring the holder of such bonds to accept such payment, and that holder were a private individual, firm, or corporation, it is conceded the statute would be void as to him, . . . Assuming the statute might be held to be valid when applied only to refunding bonds issued to take up bonds held by another municipality of the state, over which the legislature had complete control, there is no attempt in the statute to segregate the invalid portion of it from that which is valid; neither does it contain a saving clause; hence it cannot stand.” (p. 433.)
The court held the statute to be void. We think the same rule applies here and that the statute in question is void.
Counsel for the state contend that, aside from the validity of section 62-1322, the order made by the presiding judge of the district court of Johnson county, January 10, 1942, upon its face, and in view of the existing factual situation, was void, or at least so voidable that it should be set aside upon their motion. They point out that under 62-1323 the order “shall specify the cause of removal,” and the only facts set out were:
“. . . ■ that, subsequent to the arrest of the defendant herein, there has followed an unusual and very extensive amount of publicity concerning said defendant and the charges filed against him, which publicity appeared in many issues of the newspapers of said district, and also in the metropolitan newspapers which are extensively distributed and read throughout said district; that in addition thereto, great interest has been shown and a great amount of discussion had concerning said case throughout said district, and opinions have been freely expressed concerning the same; . .
They argue these facts are insufficient to have authorized a change of venue if no more had been found upon a hearing of defendants’ petition filed and considered as provided by 62-1320, 62-1321, citing: State v. Bohan, 15 Kan. 407; State v. Rhea, 25 Kan. 576; State v. Furbeck, 29 Kan. 532; State v. Daugherty, 63 Kan. 473, 65 Pac. 695; State v. Parmenter, 70 Kan. 513, 79 Pac. 123; State v. Bassnett, 80 Kan. 392, 102 Pac. 461; State v. Welch, 121 Kan. 369, 247 Pac. 1053; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Harris, 126 Kan. 710, 271 Pac. 316; State v. Hooper, 140 Kan. 481, 37 P. 2d 52.
The point is well taken.
The factual situation, as stated by counsel for the state, shown in part by the transcript of the proceeding of January 10, 1942, and in part by other documents before the court, and not controverted, are that in conference between the court and counsel on January 5, when suggestions were made about removing the case to the other county of the tenth judicial district, or to some county adjoining that district, defendants did not consent, but when the court suggested removing the cases to Shawnee county, defendants consented. It is argued this partook of the nature of a bargain; that by withholding or giving their consent defendants could have their cases removed to the county of their choice, and it is suggested, but not attempted to be established here, that defendants had one or more special reasons for wanting the case removed to Shawnee county. Certainly this statute (62-1322) was never intended to permit such a procedure. This court declines to give countenance to it. We conclude the legally inconsequential reasons given for removal, stated in the order, and the circumstances under which it was made, render the order void. Certainly it is so voidable that it should be set aside upon motion of counsel for the state, or of the defendants, or upon the court’s own motion.
Counsel for defendants argue the district court of Shawnee county had no power to remand the case to the district court of Johnson county unless its order of January 10, 1942, was void, as distinct from being voidable. Without examining the question carefully, and for the purpose of this case, we shall assume this contention to be correct. However, every court has the authority, and in fact the duty, of satisfying itself that it has jurisdiction of a case before it proceeds to the trial thereof. The district court of Shawnee county remanded the case for the stated reason that “the order of transfer and change of venue ... is irregular and not in accordance with the law and confers no jurisdiction upon the district court of Shawnee county.” We are not advised whether the judges of the district court of Shawnee county thought 62-1322 was void, or thought the order void on its face because “the cause of removal” (62-1323) was legally insufficient, or because of its irregularity as shown by the transcript which accompanied it. Either of the two' reasons first stated, and perhaps the third, justified their order.
Counsel for defendants argue section 10 of our bill of rights was. enacted for the benefit of persons charged with crime, and the order of removal of January 10, 1942, is no concern of the state, if defendants consent to it. The argument goes too far. It is true this, and other sections of our bill of rights were designed to insure to. citizens many rights, of which all too frequently they had been deprived in times past, but it is inaccurate to say the state is not concerned with the trial of a criminal action in its proper jurisdiction and venue. That the state may move to set aside an irregular order for a change of venue was specifically ruled in State v. Potter, 16. Kan. 80, 95; in In re Edwards, Petitioner, 35 Kan. 99, 103, 10 Pac. 539, the motion of the county to set aside an order of removal was sustained; in State v. Knapp, 40 Kan. 148, 19 Pac. 728, the. state appealed from an order of the court dismissing a case which had been removed; and since the change of venue may be a wrong to the public (State v. Stark, 63 Kan. 529, 66 Pac. 243), the state is always interested in such an order. Indeed, our statutes (62-1318 to 62-1321) authorizing a change of venue on account of prejudice of inhabitants; and providing the procedure therefor, require notice to the county .attorney and authorize him to file affidavits in opposition to the petition for the change.
Counsel for defendants argue the order of the district court of Johnson county of January 10 was in all respects regular and in conformity to law. We do not agree. Hereinbefore we have discussed that matter sufficiently. Counsel point out that defendants gave new bonds to appear in Shawnee county, and their former bonds for their appearance in Johnson county were set aside by the court. This was a part of the order for the removal of the cases which we have held to be invalid. New bonds may be required by the court if that is deemed necessary or prudent.
Counsel for defendants argue that the state has slept on its rights,, in that it did not appeal from the order of the district court of Johnson county of January 10, and say that order has become -“resjudicata.” The point is not well taken, for the following reasons, at least: The doctrine of res judicata is rarely applied in criminal cases, and we think it has no application here; and in any event it. would not prevent the state from questioning the order if-it is void, or if it is so voidable that it could be set aside on the state’s motion and there is still time within the term of court at which it was made to file such a motion.
The mandamus action, No. 35,592, in this caption remains to be-treated. The motion for the writ and the answer filed by defendant present the same fundamental legal questions presented and herein-before determined in the two groups of appeals. It will not be necessary to rediscuss them.
The motion for the writ also alleges a number of facts which, if established, would tend to show that the defendant is disqualified to-sit as the presiding judge in the trial of these four Hedrick cases, and we are asked to hear the evidence and to adjudge defendant to be so-disqualified and to appoint some other judge of the district court as-judge pro tern to preside at the trial of the cases. The state has filed also a separate certificate, in apparent conformity to G. S. 20-311a, for the appointment of a judge pro tern to hear the cases for the -reasons as alleged in the motion for the writ. The answer, verified and filed by the defendant, denies, and perhaps as to some of them explains, all of these allegations upon which plaintiff seeks-to have it adjudged that he is disqualified to try the cases. In this respect the pleadings present controverted issues of fact which cannot be determined .without the taking of evidence. However, the-verified answer filed by defendant contains the following pertinent, allegations:
“This respondent states that he has always been and still is of the opinion, that no judge of a district court should preside in the trial of a case, or cases,, which involve criminal charges against any members of his district court bar,, which opinion applies t-o the situation involved herein, and to the status of this respondent and said defendants Frank D. Hedrick, Sr., and Frank D. Hedrick, Jr., who have been and who now are members of the district court bar of Johnson county, of which court this respondent is the presiding judge.”-
And the final prayer of the answer reads:
“Therefore, by reason of the foregoing, this respondent, as judge of the district court of Johnson county, Kansas, prays the order and decree of the supreme court of the state of Kansas, designating and appointing some district judge in the state of Kansas, as judge pro tem of Johnson county, Kansas, for the purpose of presiding at the hearings, and the trials and all matters and things relative to said four cases, wherein said Frank D. Hedrick, Sr., and Frank D. Hedrick, Jr., are the defendants, if and when the jurisdiction of said cases, and of said defendants, by the judgment and decree of the supreme court of the state of Kansas, be finally placed in the jurisdiction of the district court of Johnson county, Kansas.”
Defendant also filed in this court, in apparent conformity to G. S. 1935, 20-311a, a separate certificate of his disqualification and request for the appointment of a judge pro tem in the event the district court of Johnson county is adjudged to have jurisdiction for the further trial or disposition of the Hedrick cases.
The court is not particularly concerned with whether the defendant is disqualified to act as presiding judge in the trial of the cases mentioned because of the reasons alleged in the motion for the writ and denied in the answer, or for the separate reasons stated by defendant in his answer. If a presiding judge is disqualified to preside over the trial of a case for any reason which causes him to regard himself as disqualified he should, of course, step aside and ask the court to appoint a judge pro tem to preside over the trial.
The order of February 17,1942, of the judges of the district court of Shawnee county appealed from by the defendants is affirmed. The order of February 21, 1942, of the district court of Johnson county appealed from by the state is reversed, and it is held that the four cases in which the informations were filed against the two Hedricks are pending for trial or other lawful disposition in the district court of Johnson county. Upon the answer and certificate filed by the defendant in case No. 35,592 the court finds and adjudges that the Hon. G. A. Roberds, judge of the district court of the tenth judicial district, is disqualified to sit as the presiding judge in the above mentioned cases, and in due time will appoint a judge pro tem for the purpose of presiding over the trial of such cases.
Allen, J., dissents.
Hoci-i, J., not participating.
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The opinion of the court was delivered by
Hoch, J.:
The principal question presented by this appeal is whether certain items listed in the inventory of a decedent’s estate as debts due the estate were wiped out by the will of the testator and should therefore be stricken from the list of assets.
W. H. Bush, a resident of Atchison county, executed his will on February 11, 1931. After his death on May 15, 1939, the will was duly probated and Mary Ellen Bush and Earl G. Oswald were named as executrix and executor. In the inventory thereafter filed were listed sixteen items as debts due the estate from decedent’s son, Harry Bush. These items, covering loans or advances made to Harry Bush at different times between July 31, 1926, and April 14, 1935, were in amounts from fifty dollars to five hundred dollars. The total of all items was $2,750.
It is unnecessary to quote the will in full. The testator made various specific bequests to his wife and two daughters, and one to his wife in trust for his grandson. The residuary estate was then disposed of as follows:
“The balance of my estate is to be divided equally between, my wife, Mary Ellen Bush, and my children, Cora B. Bush, Sarah B. Bush, Jessie Bush Oswald, Mary Bush Smithson, and Harry Bush.”
No reference was made in the will to any loans or advances theretofore made to the son, Harry Bush, or to any others.
Harry Bush .filed a petition in the probate court in which he alleged that all debts of the estate—except certain charges not necessary to note here—and all legacies had been paid; that he was not indebted to the estate; that the sixteen items hereinbefore referred to were not assets of the estate and should be stricken from the inventory, that .such items constituted gifts to him from his father, but that if they should be construed by the court to be “advancements,” they were canceled by the will of the decedent.'
The probate court held, after hearing, that four of the items, which the court designated “class A” and which amounted to an aggregate of $925, were promissory notes of Harry Bush which should be retained in the inventory as debts due the estate; that as to the remaining twelve items, which the court designated “class B,” and which amounted to a total of $1,645—
“It was the intention of the testator at the time these documents, acknowledgments, receipts or notes, whatever they might be called, were given by Harry C. Bush, that they should be collected only from such interest as Harry C. Bush might have in the estate; that there was "no enforceable liability on the part of Harry C. Bush to pay during the lifetime of donor or after his death, other than from the assets of the estate; that they were to"draw no interest; that the documents in class ‘B’ are by their nature advancements (Duckett Co. Clerk v. Gerig, 79 N. E. 94).”
and that since the will did. not specifically or inferentially refer to such “advancements,” it must be presumed that the testator in mak ing his will thereby provided against them, and that they should be stricken from the inventory. From the decision of the probate court striking the class B items from the inventory the executor and executrix appealed to the district court. Harry Bush took no appeal from the court’s decision that the class A items were debts and should be retained in the inventory, but filed a motion in district court to dismiss the executors’ appeal.
Among the grounds assigned in the motion to dismiss were that the decision of the probate court was not a final and appealable order, and that—
“The appeal taken herein, by the appellants, is not an appeal from an order, judgment, decree or decision of the probate court, but is only an appeal from a part of an alleged order, judgment, decree or decision.”
Having overruled the motion to dismiss, the district court heard the appeal as to the twelve items in class B and as to ten of the items, totaling $1,095, made a finding in conformity with the decision of the probate court, 'that they “were advancements and are not chargeable against said Harry C. Bush and should be stricken from the inventory.” As to the remaining two items, totaling $550, the district court found that they were notes of Harry Bush, covering loans made after the will was executed and on that account should be retained in the inventory as debts owed to the estate.
The executors appeal from that part of the judgment striking the ten items from the inventory, and Harry Bush cross-appeals from that part of the judgment retaining in the inventory the two notes given after the will was executed. Harry Bush also cross-appeals from the order overruling his motion to dismiss the appeal from the probate court.
We first consider cross-appellant’s contention that the appeal from the probate court should have been dismissed. His two principal arguments are, first, that the order complained of was not appealable as it was not “a final decision of any matter arising under the jurisdiction of the probate court” (G. S. 1941 Supp. 59-2401 [21]); and second, that the appeal was an attempt to appeal only “from a part of an alleged order, judgment, decree or decision.”
It may be noted, in the first place, that it was not the appellant but the cross-appellant who brought the action in the probate court to strike the sixteen items from the inventory. Whether that was the proper method to follow to secure cancellation of the notes is not argued here and we shall not examine the question. In any event, the probate court accorded him a large part of the relief which he sought. It struck twelve of the sixteen notes from the inventory. All it did as to the other four was to leave them in the inventory where the executors had listed them. We think that the decision of the probate court that twelve notes should be stricken from the inventory was clearly appealable, under paragraph (21), supra. Being stricken from the inventory, these notes would not thereafter be held for collection or considered in making final distribution. The decision determined the matter and the executors were entitled to a review.
In various cases we have held that an order of a probate court allowing a claim against an estate is appealable, and not only so by the heirs or other distributees but also by creditors of the estate. (Sarbach v. Deposit Co., 99 Kan. 29, 32, 160 Pac. 900; Smith v. Smith, 107 Kan. 628, 630, 193 Pac. 314.) There is certainly like reason why a decision which reduces the listed assets of the estate should be held to be appealable. (See, also, 2 Bartlett’s Probate Law and Practice, p. 497, ¶[ 1274, and cases therein cited.)
We must also disagree with appellee’s contention that the appeal should have been dismissed because it was an attempt to appeal from only a part of a decision. The decision to strike twelve notes from the inventory was complete in itself. It was not affected in any way by the fact that the court did not also strike some other notes. from the inventory. Had the sixteen notes been made by sixteen different persons, could it be said that the executors would be precluded from appealing from the decisions on twelve of the notes because they did not also appeal from the decisions on the other four which were favorable to the estate? Obviously not. The fact that all sixteen were signed by one person does not alter the principle involved.
We have noted the case of Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750, but find it clearly distinguishable from the one before us. In that case, Hyland, an administrator, brought action against Hogue, formerly guardian of the decedent, alleging wrongful management of the ward’s estate and asking to have certain funds replaced in the estate. One cause of action was stated, but six items were listed as a basis for liability. In the district court a verdict was rendered against Hogue as to one item in the amount of $1,475 but in his favor as to the other items. Hogue paid the $1,475 into court and it was turned over to and receipted for by the adminis trator. The administrator then appealed to this court, claiming that Hogue should also have been held liable on the other items. The appeal was dismissed under the well-established rule that where a litigant voluntarily accepts the benefits of a judgment he thereby waives error and cannot appeal from the judgment. In the instant case it can hardly be said that the executors accepted benefits under, the decision on the twelve items simply because they did not object to leaving the other notes in the list of assets.
At this point we may dispose of the question relating to the four notes which the probate court held should be retained as debts to the estate. We need not examine the basis of that decision. No appeal was taken to thé district court as to them, nor. does the record disclose that Harry Bush even asked the district court to consider them in connection with the appeal from the decision on the twelve notes. Decision on the four notes is not here for review.
. We reach appellants’ main contention that the court erred in holding that ten of the items, or notes, were “advancements” to the appellee, which were wiped out by the will. The “notes” were found, among other papers, in the bank box of the testator. Also introduced in evidence were canceled checks of the testator, corresponding in part at least to the “notes” of the son, and on some of these checks the word “loan” has been written. One of the “notes,” typical of all those here involved, was as follows:
“Shannon, Kansas,
Sep 14, 1927.
“I, Harry Bush, agree that the amount of this note,, one hundred and fifty dollars, $150.00, value received shall be deducted from my part of the estate of W. H. Bush (no interest;.
Harry C. Bush,
10-14-27”
None of the “notes” drew interest. As heretofore noted, the will made no references, directly or indirectly, to loans or advances made to the testator’s son, Harry Bush.
The word “advancement” is somewhat loosely used in this case, as in many others. Strictly speaking, it is a term applicable only in case the decedent died intestate. Similar to many definitions which might be cited is the following from 1 Am. Jur., 715:
“In its strict technical sense, an advancement is a perfect and irrevocable gift, not required by law, made by a parent, during his lifetime, to.his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor’s estate that the donee would be entitled to on the death of the donor, intestate.”
It is clear that the instant “notes” did not represent debts actionable during the lifetime of the decedent. They were not payable on demand or at any date fixed, they drew no interest and they .specifically provided that, the amount advanced should be deducted from Harry Bush’s share of his father’s estate. Unquestionably, both under the general rule and under the specific provisions of our own statute (G. S. 1941 Supp. 59-510), they would have constituted “advancements” to be deducted from Harry Bush’s share of the estate if the father had died intestate. The question is whether, as a matter of law-, they must be considered as wiped out by the will which made no reference to them.
We shall not quote at length from the authorities, but we conclude, after examination not only of the many cases and textbook citations called to our attention by the parties but of others noted in our own research, that the overwhelming weight of authority supports the ruling of the trial court that the effect of the will was to wipe out the advances theretofore made to the son.
The reasoning behind the rule may be summarized as follows: When the owner of property makes a will he is presumed to have in mind whatever advances he has made to those whom he desires to share in his estate and to have written the will in the light of such advances; by making a will he intends to have the will itself indicate his full intention, to express wholly and without qualification how he desires his property to be distributed; that if he had not intended the beneficiaries to receive in full the benefits provided in the will, he would have made reference to deduction of such advances; that it is not within the province of those construing or executing the will to say that the testator would not have increased accordingly the shares of those who had received advances if he intended such advances to be deducted. In short, that the will itself is the final and complete expression of the testator’s desire concerning property which he is free to dispose of—within the limits of the law—as he desires. (4 Page on Wills, Lifetime ed., p. 422, § 1551, § 2233.; 1 R. C. L. § 6, p. 657 et seq.; 32 A. L. R. 730-732.)
Appellant cites our decision in Guarantee Title & Trust Co. v. Siedhoff, 144 Kan. 13, 58 P. 2d 66. But in that case the debt of the son to the father was evidenced by an ordinary demand note. It was not an advance. There was no provision that the note was to be paid out of the son’s share in the father’s estate. It was a present debt, actionable at any time. Accordingly, the case is not in point. Nor does appellant call our attention to any Kansas case at variance with the general rule.
The remaining question, raised by the cross-appeal, as to the two notes covering advances made after the will was executed, is not free from difficulty. The question has not been passed upon by this court and we find some conflict of authority. We conclude, after considerable research, that the weight of authority and what seems the more logical and consistent reasoning support the view that advances, to be charged against the recipient’s share of the estate, and made after the will was executed, are not wiped out by the will. That was the view taken by the trial court. In support of the contrary view it may be urged that the will speaks at the death of the testator and that the same reasoning which wipes out advances made prior to the execution of the will also applies, therefore, to advances made subsequent thereto. It may be argued that the testator could have changed his will at any time, and that not having done so after making the later advances, it is to be presumed that in the absence of provision indicating otherwise he intends his will to wipe out all advanees no matter when made. The argument commands respect. However, we find the argument on the other side more persuasive. The general theory upon which advances made prior to execution of the will are held to be wiped out is largely based upon a presumption that when the testator made his will he had the prior advances in mind and in the light of such advances made such disposition of his property as he desired. It would be stretching this presumption to make it include subsequent advances which he could not then have had in mind. Moreover, if a testator intends that advances which may be made after the will is executed are to be wiped out, what point is there in treating them, when they are subsequently made, as “advances” at all? Why provide that they are to be charged against the recipient’s share, when no such result is to follow? Why are they not made as outright gifts and the result sought by the testator thus simply accomplished? Advances, subsequent to execution of the will, seem to fall more logically into the same class with true “advancements” which obtain in cases of intestacy and are charged against the recipient’s share of the estate. It may be said further that this view is in line with the general doctrine of ademption, the limits and intricacies of which lie beyond any need of examination here. Suffice it to say that the doctrine, as the term has come to be used in modern law, applies to the act of a testator in paying to a legatee, in the lifetime of the testator, a legacy he had previously provided by will, or in satisfying it by giving something of value in its place. Under such circumstances the legacy is said to have been wholly or partially satisfied or adeemed. In the recent comprehensive work on The Law of Wills, by Page, wherein the doctrine of ademption is discussed at length, it is said that a residuary legacy may be adeemed. (See 4 Page on Wills, Lifetime ed. ch. 43, pp. 354 to 419, and particularly § 1546, p. 413, and cases cited in footnote 3.) The reasoning of the ademption doctrine is in harmony with the view that advances “to be paid out of the share of the estate” and made after the will has been executed are to be so paid, and are not wiped out by the will. The view was thus expressed in the English case (1870) of Meinertzagen v. Walters, 7 L. R. ch. 670, 674:
“A testator who has divided his residue among his children, either equally or in any other proportion, does not intend to alter that equality or proportion by making a subsequent gift to a particular child.”
Perhaps the leading case, directly in point, supporting the view here adopted, is Hayes v. Welling, 38 R. I. 553, 96 Atl. 843, 851, syl. ¶ 6. Therein it was said:
“It is plain that if advancements are made after the execution of a will, without more, they will be deducted from' the child’s distributive share of the estate,” (p. 570.)
many supporting cases being cited.
In support of the contrary view, cross-appellant calls our attention to a statement in 32 A. L. R. p. 732, that—
“The law presumes that when a person makes a will, he will thereby provide against what he has advanced or may advance the beneficiaries therein named.” (Italics supplied.)
Three supporting cases are cited in the annotation, but upon examination we do not find them very persuasive. It is true that in the first case, Little v. Ennis, 207 Ala. 111, 92 So. 167, the statement above quoted appears, but it is not clear from the opinion that the advances involved in the case were made after the will was executed. In the second case of Kragnes v. Kragnes, 125 Minn. 115, 145 N. W. 785, the opinion refers to the wiping out of a'dvances made “during the life” of the testator, but the advance being considered was in fact made before the will was executed. The third case of Gilmore v. Jenkins, 129 Ia. 686, 106 N. W. 193, we do not think helpful to' cross-appellant. In the opinion it is stated that in making a will the testator is presumed “to have considered the advancements and the bequests made in the will collectively.” This principle clearly supports a cancellation of advances made prior to the will, but .how can the testator be presumed to have considered, along with his bequests, advancements which had not then been made? We have pursued this important subject at this length because it is a case of first impression in this state. Further discussion would unduly extend the opinion.
It- follows from the conclusions stated that the judgment should be affirmed, both as to the appeal and. the cross-appeal. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This was an action in equity to enforce a contract for the redemption of real estate and to enjoin the execution and delivery of a sheriff’s deed to the real estate. Judgment was for the defendants. Plaintiffs appeal.
The petition alleged all the facts with reference to an action by the defendant life insurance society against the plaintiffs in an action to enforce a mortgage; that a dispute arose over the amount due the society and this dispute was settled by the society admitting in a letter that it had sued for $2,600 more than was due it;t that counsel for the society further stated in this letter that the amount of the judgment was unimportant anyway, as the bid would be only $10,000 plus court costs and the 1939 taxes; that it was agreed between the parties that the company should take judgment in the sum. of $12,181.66; that in consideration of this agreement the de-' fendant company agreed that it would bid in the land at the sheriff’s sale for the principal amount of $10,000 plus court costs and the 1939 taxes, or approximately $10,350; that it was further agreed that plaintiffs could redeem from the defendant company by paying that amount of money and there would be no deficiency judgment; that notwithstanding this agreement the company through its attorneys at the sheriff’s sale bid in the land for the full amount of the judgment, costs and taxes, which amounted to $12,638.15; that on that account the plaintiffs in this action notified the company they would resist the confirmation of the sheriff’s sale; that thereafter the society in consideration of having the sale confirmed agreed .that the plaintiffs in this case could redeem from the salé for the sum of $10,386.75; and that the rest of the judgment would be released; that the plaintiffs relied upon that agreement and allowed the sheriff’s sale to be confirmed; that while plaintiffs were making arrangements to finance the redemption the society through its agent notified plaintiffs they had given an option on the property to . another party and that these plaintiffs would not be allowed to redeem the land from the sale; that the plaintiffs at all times acted in good faith and were willing to carry out the terms of their agreement, and tendered into the court the sum of $10,386.75 to redeem the land, as per the agreement; that the action was commenced on July 26, 1941/ The petition further alleged that the redemption period would expire on August 1, 1941, and that unless the sheriff were restrained he would deliver a sheriff’s deed to defendant society at that time; that plaintiffs had no adequate remedy at law and would suffer irreparable damage if the sheriff’s deed were delivered before the matter could be adjudicated.
The prayer was that the society be directed to comply with the terms of the' agreement and for an order allowing the plaintiffs to redeem in the sum of $10,386.75 and for a permanent injunction enjoining the society from attempting to secure a sheriff’s deed and enjoining the sheriff from issuing a sheriff’s deed to the land described.
Defendants filed a general answer in which they admitted the foreclosure of the mortgage and the sale of the real estate for $12,638.15, made a general denial and a further defense that the sheriff’s deed had been executed and delivered to the society on September 19, 1941.
The reply of plaintiffs denied all new matter.
When the action was brought the probate judge issued a restraining order restraining the sheriff from executing and delivering a sheriff’s deed.
On September 5, 1941, a motion of the defendants to dissolve this restraining order was heard by the district court. The restraining order was dissolved and an application for a temporary injunction was denied by the district court.
On November 7, 1941, the case came on to be heard upon its 'merits. The parties stipulated that it should be heard upon the evidence that was introduced at the hearing on the motion to dissolve the restraining order with the addition of some oral testimony by one of the counsel for the plaintiff. At the conclusion of this, hearing the defendants demurred to the evidence of the plaintiffs upon the ground that it failed to establish a cause of action in favor of the plaintiffs. The parties took time in which to file briefs, and on December 4, 1941, the trial court made findings of fact and conclusions of law to the effect that there had been no valid agreement entered into between the parties as to the amount of the judgment or the amount for which defendants would be permitted to redeem; that there was no evidence as to any controversy between the parties concerning the amount, that if there had been any offers made by the society at the time of or prior to or subsequent to the foreclosure such offers had been withdrawn before they had been accepted by the plaintiffs in this action, and that the sheriff’s deed, which the plaintiffs in this action sought to enjoin, had been issued before the trial was concluded.
The court as a matter of law held that the plaintiffs were not entitled to injunctive relief or any other relief—hence, this appeal.
The trial court made findings of fact and conclusions of law. The defendants did not introduce any evidence and did .interpose a demurrer to the evidence of plaintiffs at the conclusion of taking plaintiffs’ testimony. The evidence was practically all contained in letters exchanged between the parties and there was no substantial dispute in such oral testimony as was used. For that reason we shall examine the- record with the idea of ascertaining whether or not the findings were sustained by the evidence.
The action turns upon negotiations between the parties to an action to foreclose a mortgage as to the amount for which the land could be redeemed, which negotiations were begun shortly after the action was commenced and continued through the course of the action until the sheriff’s deed was finally executed and delivered.
As has been the practice in so many cases to foreclose mortgages, the mortgagees, plaintiffs in this action, apparently saw they had no defense to the action and when it was begun immediately started looking to their right of redemption and toward the possibility of refinancing their loan. We have the opening paragraph of plaintiffs’ exhibit 1, which is an answer to a letter written by counsel for the plaintiffs in this action, to prove this statement. At the outset it appears that there had been a misunderstanding about the interest payment on this loan and action- had been brought for $2,600 more than was actually due the mortgagee. The court found that there was slight, if any, evidence as to such a controversy but the record discloses beyond any doubt whatever that the action was brought for $2,600 more than was due the mortgagee and that had this not been called to the attention of counsel for the society judgment would have been given the mortgagee in that amount. When the attention of the society was called to this it checked its records and found such to be the case. Just how it could be said there was no controversy between the parties on this point is difficult to see. The fact that the controversy was easily settled is no evidence that there had been none.
The defendants state that this letter, exhibit 1, did not constitute anything more than a statement of policy on the part of the society.
The letter is entitled to greater weight in the consideration of this case than that. Where negotiations between parties are carried on by writing and there are some oral transactions between the dates of the .various writings this court will look to all of the writings which led up to the consummation of the contract and will consider the surrounding facts and circumstances as well as any oral testimony which throws a light on the question of whether or not a contract was entered into and as to its terms. See Handrub v. Griffin, 127 Kan. 732, 275 Pac. 196; Kirk v. First National Bank, 132 Kan. 404, 295 Pac. 703; and Lucas v. Individual Mausoleum Co., 134 Kan. 266, 5 P. 2d 1077.
In this case the matter about which exhibit 1 was written in' the first place was settled when the letter stated that the society would take judgment for $12,181.66 rather than $14,883, which was the amount asked for in the petition. The letter went further, however, and contained the following statement:
“This plaintiff has a peculiar way of bidding at sheriff’s sales. In every case except one or two which we have conducted for it we have been instructed to bid the principal of the mortgage, taxes advanced and court costs, paying no attention whatever to accruing interest either before or after judgment. We see no reason why we should not be so instructed in this case and that would mean that the bid-would'be only $10,000 plus court costs and the 1939 taxes, and of course the redemption price would be fixed by the bid.”
It is difficult to see under all the facts and circumstances why the above statement was not an offer on the part of the mortgagee to permit the land to be redeemed from sale in this -case for $10,000 plus court costs and the 1939 taxes. No doubt the lawyers in this case knew that the amount necessary for redemption would be fixed by the bid that was made • at the sheriff’s sale. Added to this is the gratuitous postscript at the end of the letter as follows:
“We should have mentioned that it is also a part of the plaintiff’s policy to release all deficiency judgment rendered in any foreclosure suit, and this is certain to be our instructions in this case.”
The only fair interpretation placed upon such writing is that the society would permit the redemption to be made at tljat figure. This letter was written November 24, 1939, when the action had just been commenced. On March 25, 1940, the same counsel wrote counsel for the mortgagor that the bid would be for the amount for which suit was brought and costs. If this were all that happened between these parties this court would construe the above as a withdrawal of the offer before it was accepted, but on March 26 counsel for the mortgagor wrote counsel for the mortgagee referring to the offer that had been made in the previous letter, and on April 8, 1940, the counsel for the mortgagee having in the meantime had a consultation with the society, to which reference is made in the record, wrote in reference to the amount that would be necessary to redeem from the sale as follows:
“The amount named is $10,386.75, which is practically the identical amount the bid would have been upon the usual theory of the company. Upon this amount the company would expect payment of 10 percent interest from the date of sale, January 31, 1940, to the date of redemption.”
At the time that letter was written the mortgagee had a certificate of sale in its hands and the letter further stated that if the offer was to be given favorable consideration it should have a substantial deposit as earnest money, the balance to be paid in a reasonable time.
In addition to the above writings there was undisputed testimony by counsel for the plaintiffs and the agent of defendants as to various conferences between counsel for the parties in the action as to the details in which the agreement testified to should be carried out.
In addition there is undisputed testimony to the effect that on the day of the sheriff’s sale counsel for the society told one of the mortgagors that they would be permitted to redeem at the lower price even though the land was bid in at the higher price.
A very persuasive bit of testimony is the testimony of the agents for the defendants that the plaintiffs would have been permitted to redeem as was agreed upon if the society had not received the cash offer for the land in question.
. Finally on April 30, 1941, the society wrote plaintiffs as follows:
“This is to advise that this society has given an option to others to purchase the above-described land in event it is not redeemed by you folks. We will desire full and complete possession on August 1, 1941.
“I am advising you of this so in case you do not redeem you will have ample- time to make arrangements in which to give possession.”
There can be no other conclusion from this letter than that it was the intention of defendants even when the option had been given to the people who finally purchased the land that it was subject to plaintiff’s right to redeem. At that time the offer to permit them to redeem by the payment of that amount of money, that is, $10,486.75, had not been withdrawn, even though on April 19 defendants had advised plaintiffs that they were dealing with a third party.
There are a number of letters which passed back and forth between counsel for both parties in this record. We have concluded, however, that the letters that defendant set out, as well as the undisputed oral testimony and all the surrounding facts and circumstances, establish that the defendant insurance company agreed with the plaintiffs that the land involved in the action to foreclose the mortgage could be redeemed from the sheriff’s sale at the figure named, that is, $10,386.75.
The defendants argue that any order of this court would be of no effect since the sheriff’s deed to the real estate in question has al ready been delivered and the land sold to a third party. This argument is not good, since the correspondence shows that the purchasers at the time of the purchase had actual notice of the negotiations that had been going on between plaintiffs and the society at the time of their purchase and the sheriff’s deed was issued while this action was pending and all parties had notice of it.
The judgment of the trial court is reversed with directions to permit the plaintiffs to redeem this real estate from the sale on the payment of $10,896.75 at any time within ninety days from the date when the mandate in this action reaches the trial court, and if plaintiffs do redeem then to set aside the sheriff’s deed.
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The opinion of the court was delivered by
Rosen, J.:
Emmis Communications and Todd Spessard appeal from the jury verdict decided against them in a tort action relating to their news coverage of the arrest of a suspect in the BTK case. Melanie Valadez, the administrator of the Estate of Roger G. Val-adez (Estate), cross-appeals from the judgment of the district court limiting the amount and scope of damages.
From 1974 to 1986, a series of at least eight homicides in the Wichita, Kansas, area were linked to an individual who identified himself as BTK (Bind, Torture, Kill). BTK was not identified or captured, the murders apparently ceased, and no further clues surfaced in the case. In the spring of 2004, BTK began to leave messages for the police and write letters to the press, which generated an intensive reinvestigation of the murders. Among these messages from BTK was a package containing autobiographical information. On November 30, 2004, the police released the autobiographical details to the public. These details included a claim that he was bom in 1939 and that his father died in World War II. His mother worked near a railroad and his family always lived near a railroad; and he wrote of a lifelong fascination with railroads and trains. He joined the military for active duty and was discharged in 1966, when he moved back in with his mother. The police also speculated, based on the language of BTK’s communications, that Spanish might be one of BTK’s primary languages.
On December 1, 2004, Wichita police received a confidential tip linking Roger Valadez with BTK. The police arrested Valadez on trespass and housing code violations and executed a warrant to search his residence.
At the time, Todd Spessard was the news director for television station KSN Channel 3 in Wichita. Emmis Communications owned KSN at the time of the events underlying the litigation of this case. KSN has a broadcasting territory that includes cable systems in Oklahoma and Nebraska.
In the early morning of December 2, 2004, Spessard received information.that someone had been arrested in connection with the BTK case. Spessard elected to broadcast the story, beginning at 5 that morning. Reporter Chanda Brown went to the address where the arrest was made. Two police cars were present at the scene, and the police informed Brown that they were there for traffic control. In response to further questions, they said they could not comment. The police did not tell her they were following leads in the BTK case. No member of the police force questioned Valadez as a suspect in the BTK killings, and the police took the position that Valadez was never arrested as a suspect in those killings.
KSN devoted a substantial portion of its programming on that day to commentaiy and interviews relating to the arrest. The news stated that Wichita police had a man in custody whom they were questioning “in connection with the BTK investigation.” In the morning broadcast, Chanda Brown identified Roger Valadez and “another woman with the same last name” as the residents of the house where the arrest was made. The broadcast also identified the exact address where the arrest had been made. KSN was the only station in Wichita to identify Valadez by name.
Brown stated that Valadez’ home was close to some of the homicide victims and, together with other information, it was adding up that there “could possibly be definitely coincidences with the BTK investigation.” The news listed factors, particularly the facts that Valadez lived “very near a railroad track,” was of Spanish descent, and was a military veteran, that suggested he was BTK.
KSN interviewed various townspeople for their reaction to the arrest. A married couple who had sold Valadez his home stated that they were surprised because they had no idea that Valadez “was some crazy character.” One of the couple was filmed saying, “I felt it run in my mind that he could have grabbed me.” The broadcasts stated that, although the police had not issued any statement confirming that Valadez was BTK, Wichita residents were relieved that Valadez was in custody.
KSN reported that the police chief himself participated in the arrest, suggesting that the arrest was of unusual importance. The police chief was not, in fact, at the scene of the arrest. KSN also reported that Valadez’ bond of $25,000 was increasing as the morning progressed, but in fact his bond was reduced to a professional surety bond of $1,250 even before results of a DNA test came back.
By 9 a.m., Spessard had heard a radio report that the police chief had already told an Associated Press reporter that no arrest had been made in the BTK case. The Associated Press put out a report by 11:18 that morning stating that no arrest had been made in the BTK investigation. KSN continued, however, to broadcast reports that BTK might be in custody. These reports included interviews with neighbors and news commentaiy about “developments in the BTK case.” The station also broadcast interviews with people who had driven to Valadez’ house specifically to see BTK’s home.
Valadez was released on bond later in the day on December 2. KSN continued to air reports suggesting that, even if Valadez was not BTK, he had probably been arrested relating to a homicide. KSN then reported that Valadez “now has to go back to his neighborhood, with his neighbors and all the people that know him, and live with the fact that he was a suspect in a terrible crime.” The DNA testing results came back on the afternoon of December 3, clearing Valadez of any criminal activities related to BTK.
BTK continued to leave packages and messages for the press and the police. On February 25, 2005, the police announced that they had taken a person of interest into custody. On February 26, 2005, at a nationally televised press conference, the police announced that they had arrested Dennis L. Rader in connection with the BTK murders. On June 27, 2005, Rader pled guilty to 10 counts of first-degree murder. He was sentenced to 10 consecutive life terms.
On Januaiy 10, 2005, Valadez filed a petition naming Emmis Communications, The Associated Press, Journal Communications, Inc., and Journal Broadcast Group of Kansas, Inc., as defendants. The petition raised claims based on invasion of privacy — intrusion on private concerns; invasion of privacy — publicity to private life; invasion of privacy — false light; outrageous conduct; and defamation. Valadez subsequently voluntarily dismissed his claim against The Associated Press.
On October 20, 2006, a jury found that the defendants’ conduct was defamatory as well as extreme and outrageous. The jury awarded damages of $800,000 for mental suffering, shame, and humiliation and $300,000 for injury to reputation.
On January 10, 2007, before a journal entry was settled and signed, the defendants filed a suggestion of death suggesting that Valadez had died on November 27,2006. The district court granted a motion by Melanie Valadez, acting as administrator of Valadez’ estate, to substitute the estate as the plaintiff in the action. It held, however, that the defamation action abated when Valadez died. The court found that the extreme and outrageous conduct action survived Valadez’ death. The court reversed the award of $300,000 for damage to reputation because of the abated defamation action and reduced the award of $800,000 to $250,000, citing the K.S.A. 60-19a02 limitation on awards for noneconomic losses.
The defendants filed a timely notice of appeal, and the Estate filed a timely notice of cross-appeal.
We initially address tire question of whether the plaintiff proved damages sufficient to sustain an action for outrage.
In Kansas, the tort of outrage is the same as the tort of intentional infliction of emotional distress. Hallam v. Mercy Health Center of Manhattan, Inc., 278 Kan. 339, 340, 97 P.3d 492 (2004).
In order to prevail in a claim of intentionally causing emotional distress, a plaintiff must prove four elements: (1) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant’s conduct and the plaintiff s mental distress; and (4) the plaintiff s mental distress was extreme and severe. Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991) (citing Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 [1981]).
Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it. Saylor, 230 Kan. at 292-93.
Conduct that rises to the level of tortious outrage must transcend a certain amount of criticism, rough language, and occasional acts and words that are inconsiderate and unkind. The law will not intervene where someone’s feelings merely are hurt. In order to provide a sufficient basis for an action to recover for emotional distress, conduct must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society. Taiwo, 249 Kan. at 592-93.
Furthermore, conduct that would otherwise be extreme and outrageous may be privileged under the circumstances. “The actor is never hable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” Restatement (Second) of Torts § 46, comment g (1976).
The news media enjoy constitutional protection for reporting true information. See, c.g., Cohen v. Cowles Media Co., 501 U.S. 663, 115 L. Ed. 2d 586, 111 S. Ct. 2513 (1991) (confidential informant cannot maintain defamation action against newspaper that correctly discloses informant’s name); The Florida Star v. B.J.F., 491 U.S. 524, 105 L. Ed. 2d 443, 109 S. Ct. 2603 (1989) (statute making it unlawful to publish name of victim of sexual offense violates First Amendment when name lawfully obtained, law specifically targets press, and law imposes liability automatically without case-by-case findings of fact); Ramsey v. Fox News Network, L.L.C., 351 F. Supp. 2d 1145, 1153 (D. Colo. 2005) (because of respect accorded expression in matters of public concern under the First Amendment, such as well-publicized crimes, existence of material fact of false reporting must be established with convincing clarity).
It is likely that Valadez would have suffered some emotional distress if the defendants had limited their broadcast to certain accurate information. For example, if the station had reported only that an anonymous tip had connected Valadez to BTK and that a large contingent of police had then moved in during the night to arrest Valadez and to execute a search warrant on his house, the results would likely have included some degree of public embarrassment and emotional difficulty. It was incumbent on Valadez to demonstrate that he suffered severe emotional distress beyond what he experienced as a result of the defendants’ constitutionally protected activities.
It is only where the distress is “extreme” or “severe” that liability arises. Taiwo v. Vu, 249 Kan. 585, 594, 822 P.2d 1024 (1991); Restatement (Second) of Torts § 46, comment j (1976). While Val-adez provided testimony that he suffered emotional distress, he failed to present evidence that the distress was extreme.
Valadez testified that, upon seeing the newscast about him, he felt as if he had “been hit in the gut as hard as anybody could hit me and put me on the floor, it wouldn’t have been more painful.” He testified that he felt physically ill as a result of the publicity and that he was afraid to go back to his home for more than a month. His daughter testified that Valadez was ciying when he watched the newscast, that he became more private and more afraid of being alone, and that he broke down in tears when his physician asked him how he was doing. The record does not show that he sought medical treatment or psychological counseling specifically related to the arrest and the concomitant publicity and that the effects were long-lasting. The testimony also does not attempt to separate the anxiety suffered from legitimate, constitutionally protected news reporting from any distress caused by the defendants’ alleged unprivileged conduct.
Elevated fright, continuing concern, embarrassment, worry, and nervousness do not by themselves constitute sufficient harm to a plaintiff to warrant the award of damages for outrage. See Roberts v. Saylor, 230 Kan. 289, 296, 637 P.2d 1175 (1981); Vetter v. Morgan, 22 Kan. App. 2d 1, 4, 913 P.2d 1200, rev. denied 257 Kan. 1096 (1995).
As one treatise explained:
“There is no laundry list of what qualifies as the requisite level of severity [of emotional distress] .... [I]t is fair to say that headaches, sleeplessness, irritability, anxiety, depression, listlessness, lethargy, intermittent nightmares, and the like would probably not suffice anywhere.
“On the other hand, physical symptoms probably would suffice, and if purely mental symptoms are all that apply . . . those symptoms should at least be long lasting and debilitating.” Boston, Kline, & Brown, Emotional Injuries: Law and Practice § 22:7 (1998).
This conclusion is consistent with the determination by this court that the absence of psychiatric or medical treatment, including medication, weighs against a finding of extreme emotional distress. Saylor, 230 Kan. at 296.
In the present case, the jury rendered a verdict based on evidence consistent with jury instructions numbers 8 and 10 (based on PIK Civil 3d 127.70 and 127.71). These instrtictions as given, however, do not fully reflect the threshold requirement for proof of damages necessary for recovery for extreme emotional distress. This discrepancy was brought to the court’s attention by the defendant during the court’s discussion with counsel preceding the adoption of the jury instructions in this case. While this issue is not before us, we offer this observation for future guidance on cases dealing with this issue.
We find that, as a matter of law, the Estate failed to present sufficient evidence to prove that the injury suffered by Valadez was extreme within the context of this action for outrage. We do not hold that the media is beyond the scope of tortious outrage actions in all circumstances; we merely hold that under the facts of this case the plaintiff failed to prove an injury severe enough to sustain his claim.
This conclusion renders other issues raised by the appellant moot.
On cross-appeal, the Estate asks this court to reverse the district court’s ruling setting aside the $300,000 judgment for damage to reputation. The district court determined that the award abated upon the death of the plaintiff. The Estate contends on appeal that the defamation action did not abate because the jury had already rendered its verdict and the judgment was merely awaiting formal entry.
In Nicholas v. Nicholas, 277 Kan. 171, 83 P.3d 214 (2004), this court found that an action for invasion of privacy does not survive the death of the plaintiff. The court found that such an action is personal in nature and must be brought by a living person. 277 Kan. at 191. Defamation is similar to invasion of privacy, in that there is no requirement of proof of personal injury that would allow the action to survive under K.S.A. 60-1801.
K.S.A. 60-1801 reads:
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”
K.S.A. 60-1802 reads:
“No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, or for a nuisance.”
Whether a particular cause of action survives the death of a party is determined by K.S.A. 60-1801. K.S.A. 60-1802 provides only the procedure for the continuation of an action by substitution of parties in those cases where the cause of action survives the death of a party. Gross v. VanLerberg, 231 Kan. 401, 405, 646 P.2d 471 (1982).
Proof of invasion of privacy by intrusion on seclusion requires only proof of an intentional interference with the solitude or seclusion of a person’s physical being or prying into a person’s private affairs and concerns and proof that a reasonable person would be highly offended by the intrusion. See Werner v. Kliewer, 238 Kan. 289, 294, 710 P.2d 1250 (1985). These elements are more akin to defamation than to outrage, in that the plaintiff needs only to prove an objective likelihood of offense and does not have to prove actual emotional distress. See McCormick v. City of Lawrence, 278 Kan. 797, 806, 104 P.3d 991 (2005) (claims of breach of privacy and outrageous conduct causing severe emotional distress are separate torts).
In Nicholas, this court found that an action for invasion of privacy based on intrusion upon seclusion does not survive the death of a plaintiff. The question presented to the court was whether an action for invasion of privacy survives the death of the plaintiff as an “injury to the person” under K.S.A. 60-1801.
The court favorably cited Carter v. City of Emporia, Kan., 543 F. Supp. 354, 356 (D. Kan. 1982), for the proposition that an invasion of privacy action is personal in nature and must be brought by a living person who was the subject of the privacy invasion. 277 Kan. at 191. The court also favorably cited the Restatement (Second) of Torts § 6521 (1976), the comments to which stated:
“ ‘a. The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his. The only exception to this rule involves the appropriation to the defendant’s own use of another’s name or likeness. [Citation omitted.]
“ ‘b. In the absence of statute, the action for the invasion of privacy cannot be maintained after the death of the individual whose privacy is invaded. In a few states particular statutes permit the survival of an action for invasion of privacy that has occurred before death. In a smaller number of states there is statutory authorization for an action on the part of surviving relatives for invasion of the privacy of one who is already deceased, with the invasion occurring after his death. Since appropriation of name or likeness is similar to impairment of a property right and involves an aspect of unjust enrichment of the defendants or his estate, survival rights may be held to exist following the death of either party.’ ” Nicholas, 277 Kan. at 191-92.
The court then cited Mineer v. Williams, 82 F. Supp. 2d 702 (E.D. Ky. 2000), which rejected an argument that the omission of privacy actions from the list of actions that abate upon a party’s death signified a legislative intent to preserve privacy actions: “ ‘The court holds, however, that there was no need to mention the right of privacy action specifically because one of its essential elements is that only a living person can sue for invasion of privacy. Restatement of Torts (Second) § 652, supra.’ 82 F. Supp. 2d at 705.” Nicholas, 277 Kan. at 192.
Under the Kansas statutory scheme, an action for damages for injury to reputation does not qualify to survive the death of the plaintiff when the death occurs before judgment becomes final. See Sellars v. Stauffer Communications, Inc., 236 Kan. 697, 695 P.2d 812 (1984) (affirming in its entirety Sellars v. Stauffer Communications, Inc., 9 Kan. App. 2d 573, 575, 684 P.2d 450 [1984], which held that action for defamation does not survive plaintiff s death). We must therefore determine whether judgment was final at the time that the juiy reported its verdict.
The law in Kansas is clear that a case is not final until there is no possibility of further court action. The effective date of a journal entry is when it is signed by the trial judge and filed with the clerk of the district court. ARY Jewelers v. Krigel, 277 Kan. 464, 473, 85 P.3d 1151 (2004); K.S.A. 60-258. A journal entry containing findings of fact and conclusions of law takes precedence over and may differ from the trial court’s oral pronouncement from the bench. Radke Oil Co. v. Kansas Dept. of Health & Environment, 23 Kan. App. 2d 774, 782, 936 P.2d 286 (1997). A judgment that has been orally pronounced but that lacks a journal entry is therefore not a final judgment. See In re Marriage of Wilson, 245 Kan. 178, 181, 777 P.2d 773 (1989) (in divorce action where party died after divorce was orally granted but before journal entry of judgment was signed by judge and filed with district court clerk, divorce decree was ineffective); see also State v. Boggs, 287 Kan. 298, 306, 197 P.3d 441 (2008) (criminal conviction not considered final until availability of appeal exhausted and time for rehearing or final review has passed).
The defamation award was not final at the time that Valadez died, and his estate may therefore not recover damages for injury to his reputation.
The judgment of the district court that the claim for defamation was abated by Valadez’ death is affirmed. The award of damages for die tort of outrage is reversed.
David J. King, District Judge, assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator s office against the respondent, Nancy F. Orrick, of Overland Park, Kansas, an attorney admitted to the practice of law in Kansas in 1988.
On November 6, 2009, the Disciplinaiy Administrator s office filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent filed an answer to the formal complaint on November 25, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 3,2009, where the respondent was personally present and represented by counsel. The hearing panel determined respondent violated KRPC 1.5(a) (2009 Kan. Ct. R. Annot. 460) (fees must be reasonable); 3.3(a)(1) (2009 Kan. Ct. R. Annot. 545) (false statement made to tribunal); and 8.4(c) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct involving misrepresentation). The hearing panel recommended a 60-day suspension and a mandatory reinstatement hearing. We find there is clear and convincing evidence supporting the violations but order a 2-year suspension and a reinstatement hearing because the misrepresentations were knowingly made as detailed below.
On June 20, 2006, respondent was appointed to serve as the guardian ad litem in In re J.M., a child in need of care case before the Honorable Kathleen Sloan. On May 26, 2008, respondent submitted a bill for $1,332.50 to the Johnson County District Court for 20.5 hours work on the case. The bill covered March 7, 2008, through May 23,2008. It contained 21 separate time entries. J.M.’s mother was ordered to pay the bill. In carefully reviewing the charges, she noticed incorrect entries, such as billing for corresponding with CASA after CASA’s involvement was terminated. She investigated further by contacting others who were involved in her daughter’s case to verify other time entries.
J.M.’s mother and her attorney notified Judge Sloan about the discrepancies, which were memorialized in a letter detailing 13 billing entries that appeared to be incorrect. Respondent was given a copy of the letter on July 25, 2008. That same day, respondent wrote Judge Sloan a letter regarding the allegations. On August 6, 2008, respondent provided a second letter, which included additional comments about the specific entries on the itemized bill and revising the amounts charged.
The hearing panel found respondent’s bill contained significant misrepresentations on time entries made for March 18, 2008, May 1, 2008, and May 9, 2008, on the initial billing and also in respondent’s follow up explanations about the billings in the letters to Judge Sloan. These were described in the following findings from the hearing report.
“March 18, 2008
“12. Initially, the Respondent submitted a bill for five hours for work performed on March 18, 2008, for having:
Ticked up [J.M.] in North Kansas City and brought her to KVC for meeting with myself and KVC, got her lunch and took her back to Aunt’s House in North Kansas City’
“13. In the Respondent’s July 25, 2008, letter to Judge Sloan, the Respondent stated the following regarding the March 18, 2008, entry:
‘I can tell the Court that the original plan was for me to provide the transportation both ways and to feed her both ways. I thought I did but if Whitney says differently I believe her so my bill would be 3.0 Hours with travel time to and from my office and file review and prep. I know that I hung around awhile after meeting with [J.M.] waiting and hoping to talk with Whitney’s supervisor or Mary Bowersock’s — that was part of the reason that I did not take [J.M.] home but i do believe I gave [J.M.] money for lunch or at least tried to give her some money for lunch ■— but I was not able to make contact with Mary or the supervisor that day. I will have to admit that I do have a hard time distinguishing between my handwritten 3’s and 5’s.’
“14. In the Respondent’s August 6, 2008, revised bill, the Respondent stated the following regarding her March 18, 2008, time entry:
‘Time revised from 5 hours to 3 hours
Due to my error in reading my own
Handwriting
County reimbursed $130 to be applied
to lessen [J.M.’s motherj’s bill on 30 July 2008 3.0’
“15. On March 18,2008, the Respondent picked up J.M. from her aunt’s house in North Kansas City and drove her to a meeting at KVC. The Respondent, however, did not drive J.M. back to her aunt’s house following the meeting. It is clear from die circumstances, it can be inferred that at the time the Respondent submitted her bill to the Court on May 26, 2008, as well as at the time she wrote to the Court on July 25, 2008, and August 6, 2008, she knew that she had not driven J.M. back to her aunt’s house in North Kansas City and she knew that she had not spent 5.0 hours on J.M.’s case that day.
“May 1, 2008
“16. The Respondent’s May 26, 2008, bill included an entry for 1.1 hours for work performed on May 1, 2008, for the following:
“Went to [J.M.]’s school — she wasn’t there — t/c KVC and left message for [J.M.] — met with school officials’
“17. In her July 25, 2008, letter to Judge Sloan, the Respondent stated the following regarding her May 1, 2008, billing entry:
1 drove to [J.M.J’s school that day and went to the front office and was told that [J.M.] wasn’t in school that day. I did again leave a message for [J.M.] at school and was assured that [J.M.] would receive the same — that is what I mean when I say "Went to [J.M.J’s school and she wasn’t there — left message for [J.M.] at school and met with school officials.”
1 was not asked to sign in because I wasn’t going further in the school. I did call KVC and spoke with either Mary, Whitney or a their [sic] supervisor because I was concerned that [J.M.] not being in school.’
“18. On August 6, 2008, the Respondent revised the language of her bill, but the amount of time billed remained unchanged, as follows:
‘Drove to [J.M.J’s school and she wasn’t there; spoke with school personnel (1st adult that I could find; left message for [J.M.] @ her school and phone conference with KVC re: not in school again and mise. 1.1’
“19. J.M. attended Blue Valley Northwest High School. On May 1, 2008, J.M. attended school, but was excused from attendance for one hour of that school day.
“20. If the Respondent had gone to Blue Valley Northwest High School to check on J.M. or to meet with the school officials involved with J.M., the Respondent would have had to obtain a visitor’s pass and sign-in as a visitor. After obtaining a visitor’s pass and signing in as a visitor, the Respondent would have been directed to see Gretchen Steffen, J.M.’s school counselor, Julie Seitter, the school psychologist, or Steve Harms, a principal of the high school.
“21. Additionally, Blue Valley Northwest High School personnel does not release information regarding the attendance of students. [Footnote: At the hearing on this matter, counsel for the Respondent questioned Mr. Smithyman regarding the meaning of a ‘guardian’s order.’ Counsel for the Respondent asserted that a ‘guardian’s order’ would allow the Respondent to obtain information regarding her ward, including school records, medical records, etc. No evidence was presented to establish that tire Respondent had a ‘guardian’s order’ allowing her access to J.M.’s records or that if such an order existed, that it was presented to Blue Valley Northwest High School.]
“22. The Respondent did not obtain a visitor’s pass, nor did she sign-in as a visitor on May 1, 2008. Further, neither Ms. Steffen, Ms. Seitter, nor Mr. Harms were contacted by the Respondent on May 1, 2008, or any other day. Finally, J.M. has never received a message from the Respondent at school.
“23. R is clear, from the circumstances, that it can be inferred that at the time the Respondent submitted her bill to the Court, on May 26, 2008, as well as when the Respondent provided her July 25, 2008, letter to the Court and when the Respondent revised her bill on August 6, 2008, she knew that she had not gone to Blue Valley Northwest High School on May 1, 2008, she knew that she did not meet with a school official that day, and she knew that she did not leave a message for J.M. that day.
“May 9, 2008
“24. On her original bill, the Respondent included an entry for May 9, 2008, for eight-tenths of an hour for work performed which was otherwise identical to the entry for May 1, 2008.
“Went to [J.M.]’s school — she wasn’t there — t/c KVC and left message for [J.M.] — met with school officials’
“25. In her July 25, 2008, letter to Judge Sloan, the Respondent stated the following regarding the May 9, 2008, time entry:
1 drove to [J.M.J’s school that day and went to front office and was told that [J.M.] wasn’t in school that day. I did again leave a message for [J.M.] at school and was assured that [J.M.] would receive the same — that is what I mean when I say “Went to [J.M.J’s school and she wasn’t there — left message for [J.M.] @ school and met with school officials.”
‘No one ever asked me to sign in since I was [sic] going further into the school. I did call KVC and spoke with either Mary, Whitney or a their [sic] supervisor because I was concerned about [J.M.] not being in school. This bill is less because I knew where the school was that time and didn’t get lost and have to call for directions again.’ [Footnote: Despite the Respon dent’s statement that she became lost on her way to J.M.’s school on May 1, 2008, at the hearing on this matter, the Respondent could not recall whether J.M. attended Blue Valley North High School or Blue Valley Northwest High School.]
“26. On August 6, 2008, the Respondent amended the language of the billing entry for May 9, 2008, but not her time, as follows:
‘Drove to [J.M.]’s school and she wasn’t there; spoke with school personnel (1st adult that I could Find) left another message for [J.M.] @ her school And phone conference with KVC re: not in school again and mise. 8’
“27. On May 9, 2008, J.M. attended school, but was excused for one hour of that school day.
“28. The Respondent did not obtain a visitor’s pass nor did she sign in as a visitor on May 9, 2008. Again, neither Ms. Steffen, Ms. Seitter, nor Mr. Harms have had any contact with the Respondent. Further, J.M. has never received a message from the Respondent at school.
“29. It is likewise clear, from the circumstances, that it can be inferred that at the time the Respondent submitted her bill to the Court, on May 26, 2008, as well as when she wrote to Judge Sloan on July 25, 2008 and when she revised her bill on August 6, 2008, the Respondent knew that she had not gone to Blue Valley Northwest High School on May 9, 2008, she knew that she did not meet with a school official that day, and she knew that she did not leave a message for J.M. that day.”
Based on these misrepresentations, the hearing panel concluded respondent violated KRPC 1.5, KRPC 3.3, and KRPC 8.4(c) as detailed below:
“2. KRPC 1.5(a) requires that a lawyer’s fee be reasonable. Submitting a bill for time not spent on a case is not reasonable. Thus, when the Respondent charged Johnson County, and ultimately J.M.’s mother, for activity that she did not engage in, the associated fee is unreasonable. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.5(a).
“3. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly malee a false statement of material fact or law to a tribunal.’
“4. In the Terminology section of the Kansas Rules of Professional Conduct, the Court states that ‘knowingly’ ‘denotes actual knowledge of the fact in question.’ The Court also stated that ‘[a] person’s knowledge may be inferred from the circumstances.’
“5. While the Respondent denies ‘knowing’ that she provided a false statement to the Court by virtue of her billing statement, the Respondent’s knowledge can certainly be inferred from the circumstances. The Respondent did not malee a round-trip to North Kansas City on March 18, 2008. Thus, it can be inferred that die Respondent’s statement that she did in fact made a round-trip to North Kansas City was knowingly made.
“[6], Further, because no school officials at Blue Valley Northwest High School met with die Respondent on May 1, 2008, or May 9, 2008, because die Respondent was completely unfamiliar with the visitor protocol for the school, because no message was left for J.M. by the Respondent, and because the Respondent neither signed-in nor received the visitor photo identification badge, it can be inferred from the circumstances that the Respondent knowingly provided a false statement to the Court when she included the May 1, 2008, and May 9, 2008, billing entries.
“[7], As a result, the Hearing Panel concludes diat the Respondent provided a false billing statement to the Johnson County District Court. For the reasons stated above, the Hearing Panel also concludes that the Respondent provided false information to the Court when she provided her July 25, 2008, and her August 6, 2008, letters to Judge Sloan. Because the Respondent provided false information to the District Court in her billing statement and in her July 25,2008, and August 6, 2008, letters, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1).
“[8]. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving ... misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved misrepresentations when she filed her May 26, 2008, billing statement, when she provided her July 25, 2008, letter to Judge Sloan, and when she provided her August 6, 2008, letter to Judge Sloan. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).”
The hearing panel next considered the American Bar Association’s Standards for Imposing Lawyer Sanctions (hereinafter “Standards”), before unanimously recommending a 60-day suspension and a reinstatement hearing. Pursuant to Standard 3, the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and any aggravating or mitigating factors are to be considered. Relevant portions of the hearing panel’s analysis are included below.
“Duty Violated. The Respondent violated her duty to the legal system and the legal profession to maintain her personal integrity.
“Mental State. The Respondent knowingly violated her duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal system.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has previously been disciplined on one occasion. On November 23,1999, the Respondent was informally admonished for violating KRPC 1.3, KRPC 1.4, and KRPC 8.4(g).
“Dishonest or Selfish Motive. The Respondent engaged in dishonest conduct when she made misrepresentations to the Court. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty.
“Substantial Experience in the Practice of Law. The Respondent has substantial experience in the practice of law — -she was admitted to the practice in 1988.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. Evidence was presented that the Respondent, in addition to her medical problems described below, has personal and emotional problems. The Respondent suffers from dysthymia (chronic depression), marital problems, and neuropsychiatric manifestations of lupus and, in the past, has suffered serious personal trauma.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. Based upon a number of letters received by the Hearing Panel, die Respondent enjoys a good reputation among her peers in die Johnson County bar. It is important to note, however, Judge Sloan’s testimony made it clear that the Respondent’s previous reputation far exceeded her current reputation.
“Physical Disability. The Respondent suffers from numerous physical maladies.
“On September 30, 2009, one of the Respondent’s current physicians, Kevin Latinis, M.D., Ph.D., provided a letter detailing her diagnoses:
1 am writing tiiis letter on behalf of my patient, Nancy Orrick. She is a 50-year-old female with a medical history that includes systemic lupus er-ythematosus, significant iron-deficiency anemia, recurrent Meniere disease, hearing loss, tinnitus, vertigo related to lupus, as well as neuropsychiatric manifestations of the lupus. I began caring for Nancy in September of2007, at which time she had already been diagnosed with autoimmune hearing loss. I consolidated her diagnosis as lupus with most of her medical manifestations being accountable to this disease. Over the last two years, we have treated her with various medications targeting the immune system as well as attempting to stabilize her symptoms. Her main disease manifestations that compromise her general well-being include persistent and re current dizziness/vertigo, tinnitus (ringing in the ears), and cognitive dysfunction related to the neuropsychiatric lupus. These manifestations are quite debilitating and cause her to not be able to function in her full capacity. Clearly, as a lawyer, she is highly educated and has functioned at a very high level in society. However, with the onset and progression of this disease, she has had significant difficulty with the task necessary to maintain her position as well as to even function with some activities of daily living particularly those that included cognitive concentration. While I think we have made some progress to stabilize her disease, at this point, it is too early to say that we have reversed any aspects of it and more than likely, her lupus represents a chronic, ongoing, debilitating autoimmune disease. My goal as her physician is to first prevent progression of the disease, second stabilize her current symptoms, and third potentially reverse some of her medical issues. Although the latter is the ideal, this often can be difficult to achieve. I continue to follow her for monitoring of her complicated medication regimen as well as disease assessment, anticipating doing this in the long-term and short-term. If you have any specific questions regarding her medical issues and their effects on her daily capacities, please do not hesitate to contact me.'
Dr. Latinis did not testify at the Respondent’s hearing.
“From the Respondent’s appearance before the Hearing Panel, it is clear that the Respondent’s health problems have impacted her ability to practice law. The Hearing Panel observed what Dr. Latinis described: the Respondent had ‘significant difficulty with’ tasks that ‘included cognitive concentration.’ The Respondent’s oral response time to questions posed during the hearing was significantly delayed. The Respondent was unable to track simple questions posed.
“From its observations, the Hearing Panel has significant concerns regarding the Respondent’s current fitness to practice law.
“Remorse. At the hearing on this matter, the Respondent expressed genuine remorse.
“Remoteness of Prior Offenses. The Respondent’s informal admonition is remote in time and character.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standard:
‘6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or drat material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.’ ”
Discussion
Respondent elected not to file any exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(d) (2009 Kan. Ct. R. Annot. 337). This court holds the hearing panel’s findings are supported by clear and convincing evidence, the standard required by Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the fact-finder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The sole issue before this court is the appropriate discipline.
In determining the appropriate discipline, we cannot ignore the hearing panel’s finding that respondent’s actions were significant misrepresentations based upon a dishonest motive that amounted to knowing violations of her professional responsibilities. The hearing panel concluded in paragraphs 15, 23, and 29 that respondent: (1) knew her billing entries were false when she submitted them to the court; (2) repeated the dishonesty when the entries were questioned; and (3) knowingly gave the district court untruthful explanations to deflect those inquiries. Accordingly, we view this case as one involving a member of the bar committing multiple acts of dishonesty upon the district court.
The Disciplinary Administrator’s office recommended to the hearing panel that respondent receive a 2-year suspension. The Disciplinary Administrator’s office also recommended that prior to respondent being allowed to resume the practice of law that she undergo a reinstatement hearing pursuant to Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376) to ensure she is physically, mentally, and emotionally fit. That position was renewed at oral argument. The hearing panel recommended a 60-day suspension with a reinstatement hearing. At oral argument, respondent urged us to adopt a 60-day suspension, but speculated that her physical and mental health would not permit her to seek reinstatement in the foreseeable future regardless of the suspension imposed.
We agree suspension is the appropriate discipline because respondent’s misconduct was the result of multiple misrepresenta tions in her dealings with the district court. We find a 2-year suspension to be the appropriate length for respondent’s discipline given the nature of her offenses and the undisputed findings that respondent knowingly gave the district court misleading explanations in response to inquiries after tire initial misrepresentations were disclosed.
In addition, we share the serious concerns stated by the hearing panel and acknowledged by respondent regarding her present and future ability to practice law based upon her medical conditions and personal problems. Indeed, respondent questioned before this court whether her circumstances will ever permit her to practice law again. We find these concerns make it particularly appropriate to require a hearing under Supreme Court Rule 219 — if respondent wishes to seek reinstatement after the suspension period.
Among the other issues set out for consideration under Supreme Court Rule 219(f), the reinstatement hearing panel specifically must consider and report to this court its evaluation as to: (1) respondent’s medical, physical, and emotional health as it may affect her fitness to return to the practice of law; (2) if reinstatement is recommended, whether respondent’s practice should be monitored by another attorney; and (3) if monitoring is recommended, any appropriate terms and conditions, including the time period for monitoring.
Conclusion and Discipline
It Is Therefore Ordered that Nancy F. Orrick be suspended from the practice of law in the state of Kansas for 2 years, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event respondent seeks reinstatement, she shall comply with Supreme Court Rule 219 with consideration of the issues noted above in addition to any others provided under this rule.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports.
DAVIS, C.J., not participating.
Richard B. Walker, District Judge, assigned.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his convictions on one count of aggravated kidnapping, K.S.A. 21-3421; three counts of rape, K.S.A. 21-3502; two counts of aggravated burglary, K.S.A. 1991 Supp. 21-3716; one count of aggravated criminal sodomy, K.S.A. 21-3506, and one count of attempted aggravated criminal sodomy, K.S.A. 21-3506 and K.S.A. 1992 Supp. 21-3301. Defendant claims (1) his statutory right to a speedy trial was violated; (2) the prosecution failed to disclose exculpatory evidence; and (3) the trial judge improperly admitted: (a) evidence that one person committed all crimes, (b) a serological report without right of cross-examination, (c) DNA evidence, and (d) evidence seized under a search warrant. This court has jurisdiction pursuant to K.S.A. 1994 Supp. 22-3601(b)(l).
A series of five rapes was reported to the Coffeyville Police Department between April 1990 and January 1993. The first rape occurred on April 5, 1990. E.S. was asleep inside her residence on her couch. She awoke around 1:00 a.m. A black man entered her residence and raped her.
On August 12,1990, S.S. was in her residence. At approximately 3:15 a.m., a friend introduced the defendant, a black male, to her. After her friend and the defendant went to the upstairs of the residence to talk, S.S. went to sleep in her bedroom. At approximately 4:00 a.m., S.S. heard her friend say she was leaving, but S.S. was unsure if the defendant left with her. The next thing S.S. knew, a black male placed his hand over her mouth. She was raped. The man fled. The Coffeyville police were immediately notified of the crime. While searching for the suspect, an officer discovered the defendant in the vicinity and pursued him but was unable to catch him.
' On August 6,1991, S.C. was coming home from her boyfriend’s house at 3:00 a.m. S.C. saw a black man running at her. She was dragged to the side of her- house and raped. In April 1993, a person who identified himself as Bryant Colbert contacted S.C. by telephone and asked her for a date. S.C. recognized the voice as that of the man who raped her. The person who identified himself as Colbert called S.C. several times and questioned her about the rape. He advised S.C. that the police had suspected he had committed the rape, but that he was no longer a suspect because he had passed a DNA test.
In the early morning hours of December 5, 1992, S.V. was lying asleep on her couch. A man entered her house and told her that he wanted money. The man raped her and took her money. After the man left, S.V. drove to her parents’ house and went to the hospital for a rape kit examination. S.V. was asked to go to the police station and look through mug books. She eventually picked two pictures that looked most like the attacker. She had told Detective Humble that she had observed the man only for two or three seconds.
Detective Humble stated that he had shown S.V. a six-person photo lineup. He testified that S.V. had picked Colbert’s photograph as the person who looked most .like her attacker. S.V. told police that the person who raped her had a high voice that sounded like a white person’s -voice. She gave Detective Humble the name of Dwight Dent as a suspect. Detective Humble did not pursue this information because he believed that Bryant Colbert had raped the women.
■ On the morning of January 9, 1993, D.F. was getting ready to leave home. When she opened the door, a black man with a black leather coat hiding his face rushed at her. D.F. had known Colbert since the third grade and considered him a “pretty good” friend. She told Detective Humble that the voice of the' attacker sounded like Colbert’s, but because of the man’s height and build, she did not believe the person who raped her was Colbert.
Detective Humble noted the similarities in the manner in which the women were raped, such as the language used by the perpetrator during the commission of the rapes, die fact that the rapist covered his face or the victim’s, and that the attacker threatened to harm the victim or the victim’s children. The detective testified drat, prior to Colbert’s arrest and obtaining the DNA evidence implicating Colbert, he had requested that the KBI conduct a “secreter status” test from evidence gathered during the investigation to determine if the same perpetrator had committed each of the crimes under investigation. The detective testified that the serology report and the various similarities between the crimes indicated that a single perpetrator had committed each of the rapes.
The police arrested Colbert and charged him with the five separate rapes. Apparendy, the charges relating to the April 1990 rape of E.S. and the August 1990 rape of S.S. were barred by the two-year criminal statute of limitations. See K.S.A. 1990 Supp. 21-3106(3). The complaint was amended to charge one count of aggravated kidnapping, three counts of rape, two counts of aggravated burglary, one count of aggravated criminal sodomy, one count of attempted aggravated criminal sodomy, and one count of robbery.
A jury convicted Colbert on all counts except the robbery charge. Colbert was sentenced to life imprisonment for the aggravated kidnapping conviction, 15 years to life for each of the three rape convictions, 5 to 20 years for each of the two aggravated burglary convictions, 5 to 20 years for the aggravated sodomy, and 5 to 20 years for the attempted aggravated sodomy. All sentences were imposed consecutively. Colbert appealed.
Right to a Speedy Trial
Colbert was unable to post bail for his pretrial release. Colbert argues he could not be prosecuted because the State failed to bring him to trial within 90 days after his arraignment and thereby denied him his statutory right to a speedy trial under K.S.A. 22-3402(1).
K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of tire defendant . . . .”
Colbert was arraigned June 23, 1993. Colbert’s trial was originally set for September 15,1993, within 90 days of his arraignment. On September 9, 1993, Colbert’s defense counsel requested and obtained a continuance to allow additional time to prepare an alibi defense. The district judge noted that the additional time would be charged to Colbert. On September 14, 1993, the judge granted defense counsel’s motion to withdraw because she had not been paid as per her contract with Colbert. New counsel was appointed to represent Colbert. The court assessed time for that delay to Colbert.
Because the defense was not ready for trial on September 15, a hearing was held on September 21, 1993, to set a new trial date. The district judge noted that Colbert’s trial could be set for November 3, 1993, provided the preparation for Colbert’s alibi defense had been completed by the defense and reasonable notice of the defendant’s alibi defense had been given to the prosecution. If the defense was not prepared for trial on November 3, the next available court date would be February 10, 1994. On October 12, 1993, defense counsel requested that the case be continued past the November 3 trial date to allow additional time to prepare for trial. The judge granted the defendant’s request for a continuance and assessed the delay to the defendant. The case was set and went to trial on February 10, 1994. Colbert’s trial began 232 days after his arraignment. Colbert’s argument is that the judge’s assessment of all of the delay caused by his request for the continuance to him was unreasonable.
Delays which are the result of the application or fault of the accused, or extended by 22-3402(3)(c) to allow the prosecution to obtain material evidence, are not counted in computing the statutory speedy trial period. State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994). Defense counsel’s actions are attributable to the defendant in computing speedy trial violations. A defendant, by requesting or acquiescing in the grant of a continuance, may waive the statutory right to a speedy trial. State v. Bafford, 255 Kan. 888, 891-92, 879 P.2d 613 (1994); State v. Brown, 249 Kan. 698, 704, 823 P.2d 190 (1991). Any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of a defendant’s fault should be limited to a reasonable time measured by the particular circumstances of the case. State v. Dreher, 239 Kan. 259, 261, 717 P.2d 1053 (1986); State v. Bean, 236 Kan. 389, 393, 691 P.2d 30 (1984); State v. Sherman, 217 Kan. 326, 330, 536 P.2d 1373 (1975).
The district judge was aware of Colbert’s statutory speedy trial rights. Before granting each of the continuances requested by the defendant, the judge informed him that the time requested would be charged to him and not count in the 90-day statutory period. The record reveals that the trial was set by the district judge for the first date available after defense counsel was prepared to proceed to trial. Under the circumstances, the trial judge’s assessment of the entire delay caused or requested by the defendant was reasonable. Defendant’s trial did not exceed the 90-day statutory limit.
Failure to Disclose Exculpatory Evidence
Prior to trial defense counsel filed a motion for the State to produce all exculpatory evidence and requested a court order to interview the detective primarily responsible for the investigation. On the first day of the trial, one of the victims testified she had told the detective that she may have been raped by Dwight Dent. The detective testified that although he recalled the victim’s implicating Dent, he received the information that Dent was a possible suspect just prior to receiving the KBI serology report implicating a single suspect. Under these circumstances, he did not investigate the possibility that Dent had committed the crimes. The prosecutor informed the judge that she had provided a copy of the report to Colbert’s original defense counsel. Defense counsel moved for a mistrial or dismissal. The judge found there was no basis for concluding that the detective had “kept something hidden” from the State or Colbert and denied Colbert’s motion.
Colbert asserts that the State intentionally withheld evidence. Colbert argues that the trial judge erred in (1) failing to grant a mistrial so that the evidence could have been investigated or (2) failing to dismiss the charges. The State asserts that no exculpatory evidence was withheld and argues that Colbert fails to prove he was prejudiced by nondisclosure of that information.
Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory, and the withholding of the evidence must be clearly prejudicial to the defendant. Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. Evidence not disclosed to the defendant before trial need not be suppressed or withheld from the jury if the defendant has personal knowledge thereof or if the facts become available to the defendant during trial and the defendant is not prejudiced in defending against them. State v. Peckham, 255 Kan. 310, Syl. ¶¶ 13, 14, 875 P.2d 257 (1994).
The serology report was not introduced into evidence. On appeal, Colbert does not explain how the KBI report indicating a single perpetrator committed the crimes was exculpatory evidence. Colbert’s culpability was determined by the victims’ testimony and the introduction of DNA evidence implicating him as the individual who had committed the rapes. Although Colbert’s trial attorney had not been given a copy of the KBI preliminary serology report, prior to trial the defense was given the results of the DNA test that implicated Colbert. Colbert fails to show that he was prejudiced by the delay in disclosing that one of the victims had suggested another individual was a possible suspect and that he was not aware of the KBI serology report.
Guilt Determination
Colbert asserts that allowing the detective to testify that the crimes were committed by the same perpetrator violated his constitutional right to have the jury determine whether he was guilty of all the crimes. The State argues that the detective did not testify that Colbert was guilty of the crimes but merely stated how an analysis of the evidence caused him to believe that the same individual had committed the crimes.
During direct examination, the prosecutor asked the detective primarily responsible for the investigations what information led him to believe that the same perpetrator committed the separate crimes. The detective responded that he had observed numerous similarities in each of the rapes. The prosecutor then asked the detective what the particular similarities were. Defense counsel objected, claiming that testimony would invade the province of the jury and that the detective could only testify to his personal knowledge, not to conclusions. The judge overruled the objection, pointing out that the detective’s personal knowledge included what he believed the similarities were. The detective then described the similarities to the jury, including the manner in which the women were raped, the language used by the perpetrator during the commission of the rapes, the fact that the rapist covered his face or the victim’s during the commission of each rape, and the fact that the rapist had threatened to harm the victim or the victim’s children. The detective further noted that the KBI serology report confirmed that each of the victims had been raped by the same man.
Colbert recognizes that it is the jury’s function to weigh the evidence and determine the facts. See Kan. Const. Bill of Rights, §§ 5, 10; State v. Steadman, 253 Kan. 297, Syl. ¶ 2, 855 P.2d 919 (1993). He asserts that the admissibility of opinion testimony on the ultimate issue or issues has its limitations. He argues that opinion testimony is admissible only if it will aid the jury in the interpretation of the facts or assist in understanding the evidence.
Where the normal experience and qualification of the jurors permit them to draw conclusions from given facts and circumstances, opinions and conclusions of the witnesses are inadmissible. In a criminal trial, the defendant has the right to have the jury determine from the evidence whether the defendant is guilty. Police witnesses can testify from their experience as to a role the defendant played in an illegal enterprise — they cannot testify that in their opinion the defendant was guilty of the crime. We have observed that the admission of a witness’ opinion that the defendant was guilty of the crime, that the defendant exhibited the pressure felt by a guilty person, that other persons interviewed were not guilty of the crime, and that in an officer’s opinion there was sufficient probable cause for the issuance of a search warrant for the defendant’s residence deprived the defendant of his or her right to a fair trial. State v. Steadman, 253 Kan. 297, Syl. ¶¶ 1, 2.
Colbert fails to show that the detective’s observation that certain similarities in the commission of the rapes leading him to believe the crimes were committed by one perpetrator invades the fact-finding function of the jury. Contrary to Colbert’s assertion, the detective did not state in his opinion that Colbert was guilty of the charges.
Right to Cross-Examine
A primary interest secured by the Sixth Amendment Confrontation Clause is the right of cross-examination. State v. Hamons, 248 Kan. 51, 62, 805 P.2d 6 (1991). See Ohio v. Roberts, 448 U.S. 56, 63, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). The Sixth Amendment, as made obligatory on the states by the Fourteenth Amendment, and § 10 of the Bill of Rights of the Kansas Constitution secure to the accused in all criminal prosecutions the fundamental right to confront the witnesses against them. See State v. Willis, 254 Kan. 119, Syl. ¶ 1, 864 P.2d 1198 (1993); State v. Chisholm, 245 Kan. 145, 149-50, 777 P.2d 753 (1989).
Colbert contends that he was denied his right to confrontation when the detective was allowed to refer to the KBI “secreter status” report without the author of the report present and available for cross-examination during the trial. The State does not directly address this argument. On review, this court must determine beyond a reasonable doubt whether the detective’s mention of the KBI report violated Colbert’s constitutional right to confrontation and, if so, whether such violation had little if any likelihood of changing the trial result. See Willis, 254 Kan. at 120; State v. Knapp, 234 Kan. 170, Syl. ¶ 7, 671 P.2d 520 (1983).
To support his argument, Colbert relies on State v. Willis, 254 Kan. 119. In Willis, a pathologist’s deposition was read to the jury at trial. The defendant was not present at the taking of the depo sition and had not waived his right of confrontation. The deposition provided crucial evidence that the defendant had intentionally murdered his wife. The Willis court was unable to conclude beyond a reasonable doubt that the defendant’s absence at the taking of the deposition and the admission of the deposition at trial had little if any likelihood of changing the result of the trial. It found that the defendant had been denied his right to confrontation, reversed the defendant’s conviction, and remanded the case for a new trial.
In the present case, the detective testified as to his observations of the similarities between the rapes and how these similarities led him to conclude that the crimes were committed by the same perpetrator. The initial KBI report conclusion that one individual committed all of the crimes was not an integral part of the State’s case to prove Colbert’s guilt; it was one of the factors that influenced the scope of the officer’s investigation of the crimes.
Willis is distinguishable. As opposed to the deposition in Willis, the KBI report did not provide evidence of Colbert’s guilt. The detective was available for cross-examination. The detective’s reference to the report did not violate Colbert’s right to confrontation. Colbert fails to show he was prejudiced. We can determine beyond a reasonable doubt that the reference to the report had little if any likelihood of changing the trial result.
Search Warrant
Generally, a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application for the warrant. An exception to this general rule is available if the challenger’s attack to the supporting instruments is buttressed by allegations and an offer of proof under oath that the affidavit or application for search warrant contains (1) material statements of deliberate falsehood or reckless disregard for the truth or (2) deliberate omissions of material facts. State v. Lockett, 232 Kan. 317, Syl. ¶ 1, 654 P.2d 433 (1982). A person attacking an affidavit on the basis that it omitted information must prove that the omission was both deliberate and material. 232 Kan. at 319.
Colbert argues that blood, saliva, and hair evidence seized from his person pursuant to a search warrant for the State’s DNA test was obtained because the affidavit supporting the search warrant deliberately omitted material facts. Colbert points out that the affidavit for the search warrant omitted: (1) One of the victims had stated that she had seen Colbert since she was raped and did not believe he was a suspect; (2) although the same victim had identified Colbert from photographs as looking the most like the man who raped her, she had also stated that the rapist resembled another individual; (3) another victim stated that the rapist’s voice sounded a lot like Colbert’s but concluded that Colbert was not the rapist because of his height and build; and (4) one of the victims had informed the detective that another individual was a possible suspect. Colbert argues that if this additional information had been included in the affidavit, it would not state sufficient probable cause for the issuance of the search warrant.
Colbert filed a motion to suppress before trial. At the hearing on the motion, the State admitted that the omitted information was known when the affidavit was submitted. It argued that the omission of those facts was not material and would not have prevented the magistrate from finding probable cause to issue the search warrant. In a seven-page memorandum opinion, the judge ruled that “the affidavit, even with the omissions added, establishes probable cause that: (1) the crimes were committed; (2) they were committed by the same perpetrator; [and] (3) evidence of the crimes may be found on defendant[’s body].”
K.S.A. 1994 Supp. 22-2502 provides that a search warrant shall be issued upon oral or written application “which states facts sufficient to show probable cause that a crime has been or is being committed.” Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984). Probable cause has been described as “ ‘[b]its and pieces of information . . . fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been . . . committed and that evidence of the crime may be found on a particular person or in a place or means of convey anee.’ ” State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982) (quoting State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 [1977]).
In reviewing the sufficiency of the affidavit; the district judge noted:
“A series of five similar rapes were reported over a three-year period in Coffeyville, Kansas. Kits collected from three of the victims (E.S., S.C., and S.V.) analyzed by the Kansas Bureau of Investigation, determined that the same donor/ perpetrator had contributed to all three victims.
“Additional similiarities among the five rapes:
- all were early morning crimes,
- committed at or in the victim’s residence,
- by a black male,
- whose mode of operation was essentially the same, i.e.,
- he attempted vaginal penetration from the rear,
- with the victims on their hands and knees,
- he attempted to cover the face of either his victim or himself with clothing or a cloth covering,
- he threatened each of the victims with personal injury to either themselves or children present in the residence,
lead to a reasonable conclusion that the same perpetrator committed all five rapes.”
The State points out that even if the omissions were deliberate, the omissions must be material. See Lockett, 232 Kan. at 320. The judge specifically examined each omission, except the subsequent statement made at trial by a victim suggesting that another individual was a possible suspect. The judge concluded that the affidavit, even with the omissions added, established sufficient probable cause to issue the search warrant. After reviewing the affidavit, we find that even if all the omissions had been included, there was sufficient probable cause for the magistrate to issue the search warrant.
Admission of DNA Evidence
At trial, the State introduced the testimony of a KBI forensic scientist specializing in DNA analysis. The witness was recognized by the trial judge as an expert in the field of DNA testing. The witness explained in detail the analytical process of DNA profiling. The expert stated that the statistical probability assigned for the frequency of certain genetic types is the result of a population study and its resultant data base. The expert testified that the DNA banding patterns of the known blood sample from Colbert matched the DNA banding patterns obtained from the evidence collected from each victim. The expert stated the statistical probability of selecting an unrelated individual at random from the population having a matching DNA profile.
On cross-examination, the expert acknowledged that he could not speak for the entire scientific community as to whether the publications of the Committee on DNA Technology and Forensic Science are generally accepted. The expert admitted that he was not an expert in population genetics. Defense counsel then proceeded to read several portions of a Committee report which stated that “the genetic correlation among relatives warrants caution in the statistical interpretation of DNA typing results.” When asked how the FBI or KBI population data base represents the actual population of Coffeyvilie, Kansas, the expert stated that he was not qualified to answer that question.
The State introduced the KBI reports from the DNA analysis of each of the victims into evidence. Defense counsel objected, arguing that the population data base used had no relevancy to this case because the analysis did not accurately represent the population of Coffeyvilie, Kansas. The trial judge admitted the DNA evidence over the defendant’s objection.
Colbert argues that there was inadequate foundation for admission of the DNA evidence at trial because the State’s expert was not qualified to discuss the methodology by which the data base was gathered or explain how the data base related to the population in the Coffeyvilie area. Colbert emphasizes that the State’s expert admitted he was not an expert in population genetics and could not speak for the whole scientific community. Colbert concludes that tire State failed to show the acceptance of the expert’s overall techniques and procedures and failed to show that, without a data base of the Coffeyvilie population, those techniques were capable of producing reliable results generally accepted by the scientific community.
The State responds that the trial judge properly exercised discretion in admitting the evidence. It asserts that the DNA profile statistics were based on population studies that had general acceptance in the scientific community and were properly admissible. It points out that in Smith v. Deppish, 248 Kan. 217, 236, 807 P.2d 144 (1991), this court stated that before expert scientific opinion may be received into evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. If a new scientific technique’s validity has not been generally accepted as reliable or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence.
This court embraced the admissibility of population studies used in DNA profiling in State v. Dykes, 252 Kan. 556, 847 P.2d 1214 (1992). In Dykes, an issue concerned the denial of defendant’s request for discovery of the population data base used in DNA profiling. This court noted that the Hawaii Supreme Court’s discussion of DNA testing in State v. Montalbo, 73 Hawaii 130, 828 P.2d 1274 (1992), was helpful. The Hawaiian court found little reason for concern regarding the theory underlying the statistical evidence. It noted that the statistics and the underlying sampling were not novel or controversial. It took judicial notice that the DNA paradigm was not controversial and is widely accepted in the relevant scientific community. It recognized that the theory of DNA testing is “ unanimously accepted amongst scientists and lawyers’ ” and the techniques used are not novel but that it is the transfer of the technique to the context of DNA forensic identification which has generated much of the dispute. Dykes, 252 Kan. at 562 (quoting Montalbo, 73 Hawaii at 141). It concluded that the basic techniques underlying the analysis used by the FBI are widely accepted. Montalbo, 73 Hawaii at 141. See People v. Castro, 144 Misc. 2d 956, 960, 545 N.Y.S.2d 985 (1989); Thompson and Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va. L. Rev. 45, 60-61, 64-76 (1989).
In Smith v. Deppish, this court noted that DNA print testing and the process of Restriction Fragment Link Polymorphism Analysis have been recognized as reliable, have gained general accep tance in the scientific community, involve scientifically and professionally established techniques, and, thus, meet the criteria for admissibility under the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
While DNA print testing and the process of Restriction Fragment Link Polymorphism Analysis meet the standard of general acceptance in the scientific community and thus are admissible on that basis, such test results may be inadmissible on grounds of relevancy or prejudice as well as under traditional challenges to admissibility of evidence such as contamination of the sample or chain of custody questions. Deppish, 248 Kan. 217, Syl. ¶ 7. Generally, whether an adequate evidentiary foundation was laid for the introduction of evidence is a question for the trial court and largely rests in its discretion. So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal. City of Overland Park v. Cunningham, 253 Kan. 765, Syl. ¶ 6, 861 P.2d 1316 (1993).
Given this court’s previous decisions, defense counsel’s arguments concerning the accuracy of the statistical probability of the KBI reports from the DNA analysis were directed at the weight to be given the evidence by the jury, not its admissibility. The trial judge did not abuse his discretion in admitting the DNA evidence.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
This interlocutory appeal arises from a partnership dispute involving commercial real property located in Wyandotte County, Kansas. Dean Operations, Inc. (Operations), a Missouri corporation, filed a petition to foreclose on a loan it had originally signed as guarantor, and later purchased, on commercial real property owned by One Seventy Associates (the Partnership), a Missouri general partnership comprised of (1) Dean Realty Co. (Realty), a Missouri corporation and wholly owned subsidiary of Operations; and (2) CPI 1986-1 (CPI), a Missouri general partnership. The district court found that Realty was the alter ego of Operations and granted summary judgment to CPI.
The Partnership was formed to construct and lease two office/ warehouse buildings in Kansas City, Kansas. The Partnership agreement provided that before the managing partner could issue cash calls for any capital contributions beyond the partners’ initial capital contributions, both partners had to consent. Moreover, the managing partner did not have authority to advance funds to the Partnership or be reimbursed by the other partner, even if an advancement was necessary to preserve the Partnership’s property.
In April 1987, the Partnership executed a promissory note, mortgage and security agreement, and assignment of leases and rents (the Partnership Loan) to finance the construction of one of the buildings to Blue Valley Federal Savings and Loan Association (Blue Valley). Operations, Realty, and CPI were required to execute separate guaranty agreements to Blue Valley. The building financed by the Partnership Loan and the real estate is the subject of Operations’ foreclosure action.
CPI initially managed the Partnership. Because it was either impossible or impractical to obtain the other partner’s consent, CPI resigned as managing partner in April 1989. CPI’s resignation was precipitated by financial difficulties related to the Partnership’s lack of success in leasing space in the buildings. Realty became the managing partner and issued cash calls on the Partnership. CPI refused to contribute further capital to the Partnership. Realty, as managing partner, contributed in excess of $1 million in additional capital (including CPI’s 20% share) for the benefit of the Partnership. In October 1989, Realty filed an action in Missouri for damages against its partner, CPI, to recover CPI’s proportionate share of the cash calls and advances.
Blue Valley became insolvent. The Resolution Trust Corporation (RTC) took control of Blue Valley’s assets. The RTC sold the Partnership Loan to Community Bank. In February 1991, Operations purchased the Partnership Loan at 85% of its value from Community Bank. Following Operations’ acquisition of the Partnership Loan, Realty advised CPI that it would not advance any more funds to the Partnership and that the Partnership Loan would go into default unless CPI paid its share of the cash calls. After CPI refused to pay, the Partnership Loan went into default.
In July 1991, Operations filed an action to foreclose against the Partnership, CPI, and Realty in Wyandotte District Court (the Kansas action). After the foreclosure action was commenced by Operations, Realty requested independent counsel to determine if there was a good faith defense to Operations’ foreclosure action. In an effort to obtain an opinion that no defense existed, Realty required that the independent counsel assume no facts existed which would adversely affect the foreclosure of the Partnership Loan. Then, relying on the opinion of independent counsel, Realty advised CPI that, as managing partner, it did not intend to assert a defense to Operations’ foreclosure action.
In March 1992, by agreement of the parties, the Missouri action was dismissed without prejudice. Realty’s claim against CPI was reasserted as a cross-claim in the Kansas action. In November 1992, the district court ruled as a matter of law that, under the terms of the Partnership agreement, Realty’s cross-claim should be denied.
Following Operations’ commencement of the Kansas action, CPI brought various counterclaims against Operations, including an ac tion for a declaratory judgment to have Operations and Realty declared to be the alter egos of each other. CPI alleged that Operations had used its separate corporate structure to acquire the Partnership Loan, without CPPs knowledge or consent, to evade Realty’s fiduciary obligations; to obtain the status of a secured creditor in order to exclude CPI from the Partnership’s business and property; to coerce CPI into paying the unauthorized cash calls and advances; and to collect a judgment against CPI’s partners for the full amount of the note.
In June 1993, the district court, after examining the nature of the corporate relationship between Operations and Really, found that Operations was the alter ego of Realty. It then found that recognizing a legal fiction of separateness between Operations and Realty would cause injustice to Realty’s partner, CPI. Interpreting Missouri law, the district court held that (1) Operations as the alter ego of Realty had no right to foreclose on the Partnership Loan and (2) Operations was entitled to have its capital account credited by CPI for the amount expended by Operations in acquiring the Partnership Loan. The court also held that Operations’ status as a guarantor of the note was of no legal significance because Realty, the alter ego of Operations, was liable as a co-maker of the Partnership Loan and was holding the note and mortgage as constructive trustee for the benefit of the partnership.
The district court made the requisite findings for Operations to apply for an interlocutory appeal pursuant to K.S.A. 60-2102(b) and Supreme Court Rule 4.01 (1994 Kan. Ct. R. Annot. 22). The Court of Appeals granted Operations’ application for an interlocutory appeal of the district court’s grant of partial summary judgment on the alter ego issue. This court granted Operations’ motion to transfer the case from the Court of Appeals pursuant to K.S.A. 20-3017 and Supreme Court Rule 8.02 (1994 Kan. Ct. R. Annot. 46). This court’s jurisdiction is premised upon the parties’ stipulation that Kansas law is determinative on the alter ego issue.
The underlying cause of the Partnership’s financial hardship remains the matter of dispute in the district court action. The issues remaining to be determined in the district court are (1) Operations’ claim that CPI failed to obtain tenants for the building and designed and constructed the wrong type of building to be commercially profitable for the area and (2) CPI’s claim that Operations’ failure to provide access to the building site made it impossible to obtain tenants.
The parties agreed to submit the alter ego issue to the district court by cross-motions for summary judgment. Prior to oral argument before this court, there was a dispute between the parties as to whether the district court granted partial summary judgment or decided the issues during a bench trial. The parties had exchanged exhibit lists, witness lists, and filed trial briefs prior to the hearing in the district court. Both parties now agree that the finding that Operations was the alter ego of Realty was decided by the district judge during a bench trial.
Kansas Alter Ego Law
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Land Grant Ry. & T. Co. v. Coffey Co., 6 Kan. *245, *253 (1870). Any person, partnership, association, or corporation may incorporate to conduct or promote any lawful business or purpose. K.S.A. 17-6001(a), (b). A corporation holding stock in another corporation stands in the same relation as a stockholder. See A. T. & S. F. Rld. Co. v. Cochran, 43 Kan. 225, 234, 23 Pac. 151 (1890).
The concept that one corporation can be found to be the alter ego ofi another corporation is a well-established doctrine in Kansas law, but examples of its application in a parent-subsidiary corporate context are scarce. Several general principles may be gleaned, however, from prior application by Kansas appellate courts of the doctrine of alter ego in both dissimilar circumstances and in somewhat similar actions brought to pierce the corporate veil and hold individual officers, directors, or stockholders individually responsible for acts knowingly and intentionally done in the name of the corporation. See Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983).
In the absence of fraud or other invidious and vitiating circumstances, the fact that one corporation is instrumental in the formation of another corporation and owns nearly all of the stock of the latter corporation does not have the legal effect of making the parent corporation liable for the debts of the subsidiary corporation. Continen tal & C. T. & S. Bank v. Garden City Co., 123 Kan. 659, Syl. ¶ 2, 256 Pac. 983 (1927).
The fiction of separate corporate identities of two corporations will not be extended to permit one of the corporations to evade its just obligations; to promote fraud, illegality, or injustice; or to defend crime. Under circumstances where the corporate entity is disregarded, tire parent corporation may be held liable for the acts of the subsidiary. The mere fact, however, that a subsidiary corporation was organized for the avowed purpose of avoiding liability on the part of the holding company does not, of itself, constitute fraud justifying disregard of the corporate entity of the subsidiary. The courts will disregard the fiction of a separate legal entity when there is such domination of finances, policy, and practices that the controlled corporation has no separate mind, will, or existence of its own and is but a business conduit for its principal.
The fact that one seeking to recover from a parent corporation under a contract with a subsidiary was aware of the relationship between the two corporations may affect one’s right to recover, although, under particular circumstances, such knowledge has been held not a ground for denying recovery.
One Court of Appeals case that illustrates the application of alter ego analysis in a parent-subsidiary corporation context is Vanguard Products Corp. v. American States Ins. Co., 19 Kan. App. 2d 63, 863 P.2d 991 (1993). In determining whether a supplier of materials to a second-tier or sub-subcontractor corporation had a right to recover under a public works bond, the Court of Appeals held that the subcontractor corporation and the second-tier subcontractor corporation were in substance a single entity. The Court of Appeals noted that “appellate courts in Kansas and elsewhere have exhibited a willingness to look beyond the mere surface features of a business relationship where required in the interests of justice and equity.” 19 Kan. App. 2d at 67.
The Vanguard court reviewed two federal cases, Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974), and Schmid v. Roehm GmbH, 544 F. Supp. 272 (D. Kan. 1982), which discussed Kansas alter ego law. In Quarles, the Tenth Circuit Court of Appeals examined an attempt to subject a nonresident parent corporation to jurisdiction through application of the alter ego doctrine where only the subsidiary corporation had transacted business within Kansas. 504 F.2d at 1362-64. The court noted that a holding or parent company has a separate corporate existence and is treated separately from the subsidiary in the absence of circumstances justifying disregard of the corporate entity. “Circumstances justify disregard of the corporate entity if separation of the two entities has not been maintained and injustice would occur to third parties if the separate entity were recognized.” 504 F.2d at 1362. The Quarles court found that the totality of the facts supported the trial court’s conclusion that the participation of the parent in the affairs of the subsidiary did not amount to a domination of the day-to-day business decisions of the subsidiary and held that under the facts jurisdiction could not be established through application of the alter ego doctrine. 504 F.2d at 1364.
Schmid v. Roehm GmbH, 544 F. Supp. 272, was an action to recover damages for injuries sustained as a result of defective safety devices on a gun. In that case, the federal district court considered whether the alter ego doctrine could be applied to impose liability on the parent corporation of the defendant manufacturer. The court observed that the fact that two corporations may have stockholders or officers in common, or that one is the parent of the other, or that the parent selects from its own directors and officers the majority of the directors of the other, or that a parent finances a subsidiary is, without more, insufficient to warrant treating the two corporations as one. It concluded that from all the facts and circumstances, where it is apparent that the relationship between the parent and its subsidiary is so intimate, the parent’s control over the subsidiary is so dominating, and the business and assets of the two so mingled, that the recognition of distinct entity would result in injustice to third persons, courts will look through the legal fiction of separate entity and treat them as justice requires. 544 F. Supp. at 275. See Intern. U., United Auto., Etc. v. Cardwell Mfg. Co., 416 F. Supp. 1267, 1286 (D. Kan. 1976).
Noting that the determination of whether a subsidiary corporation is an instrumentality of the parent is a question of fact, the Schmid court noted that Cardwell had set out 10 factors, established by Fish v. East, 114 F.2d 177, 191 (10th Cir. 1940), as guidelines in making a determination of alter ego status. The 10 factors are: (1) whether the parent corporation owns all or a majority of the capital stock of the subsidiary; (2) whether the corporations have common directors or officers; (3) whether the parent corporation finances the subsidiary; (4) whether the parent corporation subscribed to all of the capital stock of the subsidiary or otherwise causes its incorporation; (5) whether the subsidiary has grossly inadequate capital; (6) whether the parent corporation pays the salaries or expenses or losses of the subsidiary; (7) whether the subsidiary has substantially no business except with the parent corporation, or no assets except those conveyed to it by the parent corporation; (8) whether in the papers of the parent corporation, and in the statements of its officers, the subsidiary is referred to as such or as a department or division; (9) whether the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation; and (10) whether the formal legal requirements of the subsidiary as a separate and independent corporation are not observed. Schmid, 544 F. Supp. at 275. The Schmid court noted that although plaintiffs had established only a few of the 10 factors, the plaintiff had failed to establish that the use of the separate corporate structure resulted in any fraud or inequitable conduct (or injustice) towards the plaintiff. 544 F. Supp. at 276-77.
Although the Kansas Court of Appeals had previously approved use of the 10 factors set out in Cardwell in determining whether the alter ego doctrine applied in a parent-subsidiary context in Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 588 P.2d 463 (1978), the Vanguard court did not cite that case as authority. In Service Iron Foundry, Inc., the Court of Appeals discussed the 10 factors and found that no single factor is necessarily conclusive in determining whether to apply the alter ego doctrine. 2 Kan. App. 2d at 674. The Vanguard court instead applied the standards set out in the two federal cases, found that the two corporations were in substance a single corporation, and reversed the district court.
Seven years after Cardwell, the United States District Court for the District of Kansas decided Hoffman v. United Telecommunications, Inc., 575 F. Supp. 1463 (D. Kan. 1983). Hoffman was an em ployment discrimination action against a parent corporation and 38 subsidiaries located throughout the country. In ruling on the subsidiaries’ motion to dismiss for lack of jurisdiction over the parent corporation, the district court held, among other things, that the parent corporation exerted such dominion and control over its subsidiaries they were not separate and distinct corporate entities, but one and the same under alter ego analysis. The Hoffman court adopted the 10 factors as set out in Cardwell. 575 F. Supp. at 1478; see Intern. U., United Auto., Etc. v. Cardwell Mfg. Co., 416 F. Supp. at 1286.
Standard of Review
When a district court has made findings of fact and conclusions of law, the function of the appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. In reviewing the district court’s decision, the appellate court must accept as true the evidence and all inferences to be drawn therefrom supporting the trial court’s findings, disregarding any conflicting evidence or other inferences to be drawn therefrom, and the district court’s findings of fact should not be set aside unless clearly erroneous. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377-78, 855 P.2d 929 (1993). The district court reviewed the affidavits of the parties’ respective experts, the nature of the corporate structures of Operations and Realty, the uncontroverted facts stated by CPI, and the interactions between the two corporations in their course of doing business.
The district court found that there was evidence that 8 of the 10 factors enumerated in Hoffman had been shown. The district court noted that Operations conceded the parent company owned all or a majority of the subsidiary, the parent and subsidiary have common directors and officers, the parent finances the subsidiary, and the parent subscribes to all stock of the subsidiary. The district court also found from the evidence that without significant contributions by Operations, Realty would be grossly inadequate in capital; that Operations pays the expenses of Realty; and that the major decisions affecting Realty and its management are made by the officers and directors of Operations, who consider Realty as a department or division. The court concluded that Operations and Realty were alter egos, acting as one corporation.
Operations does not challenge the district court’s conclusion that it owns all or a majority of the capital stock of Realty, that the corporations have common directors or officers, and that it subscribed to all of the capital stock of Realty. Operations does challenge the court’s finding that Operations finances Realty, that Realty has inadequate capital, that Operations pays the salaries and losses of Realty, that Operations does not treat Realty as a separate corporation, and that the directors or executives of Realty do not act independently in the interest of Realty but take direction from Operations.
Both parties rely heavily on the affidavits of their respective experts as they analyze the uncontroverted facts of the corporate structures of Operations and Realty and the interactions between the two in several areas in the course of doing business. The district court stated that while great attention was given to the analysis of each expert, both of whom were CPA’s, no weight was given to the opinion of either on the ultimate issue, which is legal in nature and outside their expertise. The district court adopted most of the findings of the defendant’s expert and found that in certain areas the analysis of John L. Clymer, the plaintiff’s expert, was not credible.
(1) Realty’s Financing
The district court found that without substantial payments from Operations to Realty, its subsidiary, Realty would not have been able to survive. It noted that in every year except one since 1983, Operations made cash advances to Realty so that it could pay its obligations and meet its operating needs. From 1983 through 1991, Operations’ cash advances to Realty totaled over $11 million and represented 18-22% of Realty’s financing needs. Operations’ December 31, 1991, balance sheet (without subsidiaries) and Realty’s December 31,1991, audit report, both of which were audited by Clymer’s accounting firm, classified these advances as long-term debt.
While Realty was able to obtain 78-96% of its financing from unrelated parties, that debt was guaranteed by Operations. CPI’s expert testified that, considering Realty’s history of sustaining huge losses, Operations’ guaranty of all of Realty’s borrowing from third parties indicated that Operations’ guaranty was an essential consideration in Realty’s ability to borrow from third parties. After Operations converted $4 million of inter-company debt to permanent capital in 1991 to enable Realty to obtain needed financing from unrelated parties, Realty was still unable to obtain financing without Operations’ guaranty.
(2)Realty’s Capital
The district court found that without significant contributions by Operations, Realty would be grossly inadequate in capital. The record reveals that, although Realty was able to meet its obligations each year as they matured, it could not have paid its debts but for the infusion of funds from Operations, an amount in excess of $11 million since 1983.
(3)Realty’s Salaries, Expenses, and Losses
The district court found that whether Operations pays expenses of Realty was subject to interpretation based upon the record and the respective reports of the parties’ experts. The court concluded that when viewed in totality, it was clear that the salaries, expenses, and losses of Realty were in substantial part paid by Operations.
(4)Operations’ View of Realty
The district court found that the record was replete with evidence that Operations considered Realty a department or division. The court referred to the minutes of several of Operations’ directors meetings in which Realty was referred to as the “investment side” as opposed to the “machinery side.” The record revealed that Operations commonly referred to Realty as “Investments,” the “Investments Group,” “Financial/Investments,” “Investments Division,” the “Investments side of the house,” the “Investments side,” the “Investments Portion,” the “Real Estate side,” the “Realty level,” a “department,” a “subsidiary,” a part of the “Dean Companies,” a member of the “Dean Operations Group,” and a “member of the group.” The trial court’s conclusion is further supported by evidence that, prior to the acquisition of the Partnership Loan, Operations considered itself a partner, or at least more than a mere guarantor.
On appeal, we do not weigh conflicting testimony. We have reviewed each of the contested factors and find there is substantial competent evidence to support the district court’s conclusions that (1) Realty was financed by Operations; (2) Realty was inadequately capitalized; (3) Operations paid the salaries, expenses, and losses of Realty; and (4) Operations considered Realty as a subsidiary.
Injustice to CPI
In addition to concluding that some of the 10 factors for determining alter ego status exist, it must be shown that allowing the legal fiction of separateness of the corporate structures results in an injustice. The corporate entity may be disregarded where it is used as a mere subterfuge, as an implement for fraud or illegality, or to work an injustice, or where necessary to achieve equity. Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 796, 473 P.2d 33 (1970).
Operations contends that the district court erroneously concluded that allowing the legal fiction of separateness between the parent and subsidiary corporations would result in injustice to CPI. The district court observed that the Hoffman factors were only aids in determining the issue of alter ego. It acknowledged the ultimate test for applying the theory of alter ego:
“ ‘[WJhere from ail of the facts and circumstances it is apparent that die relationship between the parent and subsidiary is so intimate, the parent’s control over the subsidiary is so dominating, and the business and assets of the two so mingled, that recognition of the distinct entity would result in an injustice to third-party persons, courts will look through the legal fiction of separate entity and treat them as justice requires’ ” (quoting Hoffman, 575 F. Supp. at 1478).
After finding that 8 of the 10 factors applied and concluding that Operations and Realty were acting as one corporation, the district court acknowledged that to disregard the separate corporation and apply the alter ego theory, there must be an injustice to CPI. The district court found that Operations had been unjust in two specific instances: First, when Operations became the secured creditor of the Partnership, it unjustly used its position of a secured creditor to circumvent the partnership agreement. Second, Operations established a condition that CPI pay its 20% of the discounted loan in cash and required CPI to pay all prior unapproved cash calls, which it was not legally responsible to do.
Operations argued that purchasing the note was a sound business judgment which did not cause CPI to incur additional liability. The court disagreed with this argument, pointing out that as a result of Operations’ acquisition of the note and mortgage, Operations became the secured creditor of the Partnership. The court noted that as the secured creditor, Operations set various conditions for its subsidiary corporation, Realty, and the subsidiary’s partner, CPI, to participate in the discounted value of the loan as an alternative to being responsible for the full face amount of the loan. To participate further in the project, Operations required CPI to pay its 20% of the discounted loan in cash and all prior unapproved cash calls. The court concluded that this requirement by the parent corporation was a condition which could not be imposed under CPI’s partnership agreement with Operations’ subsidiary corporation.
Operations’ Argument
Operations asserts that in order to meet the requisite criteria of injustice, “the behavior of the shareholder, whom the party seeking to pierce desires to reach, must be reprehensible conduct; it must be something more than a reasonable business judgment made to limit risk.” Operations claims that protecting its status as a guarantor of the Partnership Loan was an exercise of sound business judgment. Operations concludes that its offer to share the benefits of the discounted purchase price of the Partnership Loan with CPI was a benefit of the partnership.
Operations admits that foreclosure was made possible when its subsidiary, Realty, stopped making payments on the Partnership Loan. It asserts that Realty was not obligated under the partnership agreement to perpetually expend its resources while CPI refused to meet cash calls and gave no sign of making additional needed financial contributions. Operations asserts that Realty had sound business reasons to cease making payments on the Loan. It concludes that it was not equitable for the partnership to stop making the loan payments merely because Operations, the parent corporation of one of the partners, had purchased the note and mortgage. Operations con- eluded that the district judge’s decision allowing CPI to prevent foreclosure, after CPI benefitted from Operations’ guaranty of the loan, results in an injustice.
CPI’s Argument
CPI argues that Operations used its separate identity so Really could evade its fiduciary obligations to its partner, CPI. Under these circumstances, there was sufficient reason for the district court to apply the alter ego theory. Specifically, CPI asserts that the requisite injustice to apply the theory occurred when Operations and Realty conspired and concocted a plan employing their separate corporate structures. Under the plan, Realty agreed that Operations was to acquire the Partnership Loan without CPI’s knowledge or consent and then either exclude CPI from the Partnership’s business and property or force CPI to pay the unauthorized cash calls. CPI argues that this scheme would allow Realty to evade its fiduciary obligations to its partner. CPI points out that Operations and Realty used Operations’ status as a secured creditor to threaten to immediately foreclose and impose CPI’s partners with personal liability for the full face amount of the Partnership Loan unless CPI acquiesced and paid the unauthorized cash calls and advances by Realty.
In support of its argument that Operations and Realty combined together to breach a fiduciary duty, CPI cites Kunz v. Huddleston, 546 S.W.2d 685 (Tex. Civ. App. 1977). In Kunz, two partners, Kunz and Huddleston, entered into a partnership agreement to purchase, construct, and manage certain shopping centers. The partners then procured a construction loan secured by a deed of trust. The partners’ respective interpretations of the partnership agreement precipitated a dispute over the amount billed by a construction corporation in which Kunz was president and majority stockholder. Without notice to Huddleston, Kunz’ construction corporation purchased the partnership’s loan and the deed of trust and initiated foreclosure proceedings against the partnership. Huddleston subsequently filed suit for injunctive relief, for dissolution of the partnership, for an accounting, and for damages. The jury determined that Kunz had breached his fiduciary duty owed to Huddleston and assessed damages against Kunz.
On appeal, Kunz argued that there was no evidence that he and the corporation constituted a single entity, that the corporation was not a sham, and that it was error for the jury to disregard the corporate fiction and to pierce the corporate veil. The Texas Court of Civil Appeals, despite observing that strained personal relations undoubtedly existed between the partners and that Kunz was merely attempting to protect his corporation and himself, affirmed the decision of the trial court. Noting that Kunz had admitted that he was responsible for all decisions made by the corporation and that Kunz’ liability was based on principles of agency and not because he was the controlling shareholder of the corporation whose veil was pierced, the court stated:
“But if justification for the name calling of piercing the veil’ be required, that can readily be found in the facts of this case. The corporate structure was used by Kunz to avoid his existing legal obligation as a fiduciary, as required by the partnership and as called for under the partnership statute. [Citations omitted.] Kunz could not be permitted to avoid his fiduciary duty by use of this corporation.” 546 S.W.2d at 689.
Both parties in this case cited to the district court Missouri case law as to the confidential and fiduciary relation between partners and its resulting obligations. Operations asserts that the district court improperly relied on Ebest v. Bruce, 734 S.W.2d 915 (Mo. App. 1987); and Thomas v. Schmelzer, 118 Idaho 353, 796 P.2d 1026 (Ct. App. 1990). Operations asserts that both cases are inapplicable to the facts in this case because neither case involved corporate alter ego law. We disagree with Operations’ assertion.
In Ebest v. Bruce, the general partners of a limited partnership purchased loans of the limited partnership at a substantial discount. This denied the partnership the right of first refusal and the value of the discount. The limited partners sued the general partners for breach of their fiduciary duty. The circuit court found no breach of fiduciary duty, but held that the general partners could not retain the beneficial interest in the financing and ordered that they transfer the notes to the partnership in exchange for compensation equal to their cost. On appeal, the Missouri Court of Appeals reviewed Missouri statutory law relating to partnerships. The court rejected the general partners’ argument that they had not breached their fiduciary duty because the partnership owed the same amount of money after they purchased the loans as before, noting that the partnership would have benefitted from a “good deal” had it purchased the notes. The court emphasized that the defendants realized a personal gain which belonged to the partnership. It held that the general partners breached their fiduciary duty to the corporation. 734 S.W.2d at 922.
In Thomas v. Schmelzer, two couples formed a partnership for the purpose of purchasing, managing, and renting real property. The partnership was eventually dissolved by agreement. Following the-dissolution of the partnership, two partners, without notice to the defendant partners, purchased three contracts which the partnership had executed, thereby becoming a secured creditor of the partner1 ship. The two partners eventually brought an action against the defendant partners for an accounting, and the defendant partners counterclaimed for breach of fiduciary duty and misappropriation of assets. The district court entered judgment, finding, inter alia, that the partners’ purchase of the contracts was not a breach of fiduciary duty. On appeal, the Idaho Court of Appeals held the district court erred as a matter of law, stating:
‘Through their undisclosed act, the Thomases obtained an advantage over their partner by stepping into the shoes of a secured creditor. We reject the finding that this act did no economic harm to the partnership or die [defendant partners]. At least die [defendant partners] suffered because they were being subject to demands for immediate payment of the contract indebtedness plus attorney fees as sought by the [plaintiff partners] in the notice of default. We hold that the [plaintiff partners’] purchase . . . and the concealment of it during the [setdement agreement] negotiations, was a breach of their fiduciary duties to account and to render full information.” 118 Idaho at 359.
There is substantial evidence that Realty and Operations acted in concert without CPI’s knowledge when officers of both the parent and subsidiary corporations negotiated and purchased the Partnership Loan. During the negotiations, Realty and Operations were aware of the advantage that Operations as a secured creditor would have over Realty’s partner, CPI. Operations’ officers stated to the holder of the note that it was capable of rendering the Partnership Loan non-recourse if the holder of the note refused to allow Operations to purchase the Partnership Loan. Once Operations purchased the Partnership Loan at a discounted rate, it unjustly used its position as a secured creditor to circumvent the partnership agreement between Realty and CPI and place additional requirements on CPI.
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The opinion of the court was delivered by
Biles, j.:
Miguel Martinez, Jr., appeals his conviction and sentence for attempted rape of a child under 14 years of age pursuant to K.S.A. 21-3301 and K.S.A. 21-3502 — an off-grid crime. He was sentenced to life in prison with a mandatory minimum sentence of 25 years under K.S.A. 21-4643, commonly known as Jessica’s Law. The jury acquitted Martinez on the charge of rape of a child under 14 years of age in violation of K.S.A. 21-3502. This court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
We affirm the conviction and sentence. But in doing so, we hold it was error to admit into evidence a videotaped interview with the child victim. K.S.A. 22-3433(a)(8) requires the State to provide a defendant with a written transcript of such a video. In this case, the State failed to do so. We reject the State’s argument that it substantially complied with this statutory mandate by giving the defense counsel a copy of the video recording. We also reject the excuse that the State did not wish to spend money to have the transcript prepared. But despite this failure to comply, we find the video’s admission was harmless error.
We further hold the prosecuting attorney made an improper comment during closing arguments sufficiently serious to constitute prosecutorial misconduct under the first step of our two-step analysis for such questions. But we conclude the improper comment did not deny Martinez his right to a fair trial. Other issues raised are addressed below.
Factual and Procedural Background
On Martinez’ 21st birthday, some friends and family gathered at his apartment to celebrate. A.G. (the victim), her mother, and her two younger siblings were staying with Martinez and his girlfriend, Melissa Luttrell, who is A.G.’s aunt. A.G. was 5 years old. There was conflicting testimony about how much alcohol Martinez consumed, but it is clear he drank some alcohol while guests were at the apartment. Martinez testified that later in the evening he went to an upstairs bedroom to use a computer to copy a CD he received for his birthday. He denies sexually abusing the child.
A.G. testified she was trying to sleep in the bedroom while Martinez used the computer. A.G. was wearing pajama pants and underwear. She later told the jury Martinez pulled her pants down to her knees and then “[h]e started to do the bad touch.” She said Martinez touched her “bottom,” which she clarified was the part she uses to urinate. The prosecutor asked, “[W]as that on the outside of your part that you go pee with?,” and A.G. agreed. When asked how it felt, A.G. described a burning sensation. She testified he used his entire right hand to touch her. She said she did not know why he stopped, but at some point he pulled her pants back up and returned to the computer. Later her mother came upstairs, and A.G. went into a bathroom with her and told her mother what happened. During the ensuing criminal investigation, A.G. was given a sexual abuse exam, but the examining physician did not offer an opinion as to whether A.G. was sexually abused because the results were normal.
Four days after the incident, A.G. was interviewed by Sunflower House personnel. Sunflower House is a children’s advocacy center in the Kansas City metropolitan area. The interview was videotaped, and the recording was played at trial. On the video, A.G. said Martinez “touched me in my no-no.” She was given a two-sided drawing of a naked little girl to demonstrate what she referred to as her “no-no.” A.G. circled the front side, the vaginal area. A.G. stated she and Martinez were sitting down in the same bed. She then said Martinez pulled her pants down a little bit, and she indicated with her index finger to above the knee. She said he left her underwear on, and she later stated he was “touching skin.” A.G. indicated Martinez used his index finger and was touching the inside of her “no-no” for “a little bit.” When asked how far it went in, A.G. said, “It went way down.”
At one point during the video, A.G. spontaneously stated, “My mommy called me. I told him to get off of me.” The interviewer said, “And then, you said [Martinez] put [sic] his hand out of your pants?” A.G. responded, ‘When my mommy was calling me . . . and my brother and sister ... to go eat dinner.” At the video’s conclusion, the interviewer showed A.G. a box and a pen and then asked A.G. to demonstrate what it meant for the pen to be inside the box. A.G. opened the lid and placed the pen inside the box.
Martinez was charged with rape of child under 14 years of age in violation of K.S.A. 21-3502. The charging document did not allege Martinez was 18 years of age or older. At trial, Martinez moved for a directed verdict at the close of the State’s evidence, arguing there was insufficient evidence to convict. The district court denied the motion.
In his defense, Martinez testified he never touched A.G. He said he was using the computer in the bedroom to copy a CD he received for his birthday. He testified he was not paying attention to the children, but he remembered they were running up and down the stairs. He said at trial he could not remember whether A.G. was in the room that night, but earlier he had told a detective investigating the case that A.G. was never in the room with him.
Prior to deliberations, the district court instructed the jury on the charges of rape and attempted rape. Martinez was acquitted of rape but convicted of attempted rape. He was sentenced under the statutorily set term in Jessica’s Law to life in prison with a mandatory minimum of 25 years.
Martinez filed a motion for new trial or acquittal notwithstanding the verdict. He challenged his conviction on the following grounds: (1) The district court erred by admitting the Sunflower House video because die State did not provide him with a written transcript of the recording as required by law; (2) the district court improperly excluded evidence that A.G. made a prior allegation of sexual abuse; and (3) there was insufficient evidence because there was no physical evidence corroborating A.G.’s testimony. He also raised one additional jury instruction claim not relevant to this appeal.
The district court denied the motion. The court ruled the videotape was admissible even though a transcript was not provided to the defense. The court found the State substantially complied with K.S.A. 22-3433 by providing the defense with a copy of die video recording. As to the remaining points, the court ruled Martinez failed to demonstrate the prior allegation evidence was relevant and determined there was sufficient evidence for the jury to find Martinez guilty of attempted rape, even though the case was dependent only on the credibility of witness testimony. Martinez timely appealed.
Martinez makes the following arguments to this court: (1) The videotape was inadmissible under K.S.A. 22-3433 because the State failed to provide a written transcript; (2) there was insufficient evidence to convict on the attempted rape charge; (3) evidence that A.G. made a prior allegation of sexual abuse was improperly excluded; (4) the State committed prosecutorial misconduct during closing argument by misstating the law, attempting to inflame the jury, and improperly bolstering A.G.’s credibility; (5) cumulative error; (6) the failure to instruct the jury on an essential element as to defendant’s age under the sentencing provisions to Jessica’s Law; and (7) Martinez’ sentence is disproportionate and violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
The Videotape’s admissibility
Martinez first argues the district court erred in admitting the Sunflower House video because the State failed to provide him with a written transcript of the recording as required by K.S.A. 22-3433(a)(8) (governing prior recorded oral statements made by child victims). We agree. It was error to admit the videotape into evidence.
K.S.A. 22-3433(a) makes video recordings taken from oral statements given by children, who are crime victims under 13 years old, made before any criminal proceedings began, admissible in evidence if certain conditions are present. This statute operates as an explicit exception to the hearsay rule. Hearsay is a statement “made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 2009 Supp. 60-460. The relevant portion of K.S.A. 22-3433 states:
“(a) In any criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, a recording of an oral statement of the child, made before the proceeding began is admissible in evidence if:
“(8) each party to the proceeding is afforded an opportunity to view the recording before it is offered into evidence, and a copy of a written transcript is provided to the parties.” (Emphasis added.)
The State does not dispute it failed to provide Martinez with a written transcript containing A.G.’s oral statements from the videotape. Indeed, the State candidly admitted at oral argument that it had ample opportunity to comply with the statute, but it did not simply to avoid the cost attendant to preparing the written transcript. The State argues this omission was not fatal because it substantially complied with the law by providing Martinez with a copy of the videotape recording. Martinez does not dispute he received his videotape copy at least 2 months before trial. On appeal, Martinez does not argue the State failed to meet any other statutoiy conditions.
Based on these concessions, we must decide whether the district court correcdy held substantial compliance with the statutoiy mandate to produce a written transcript was sufficient when the State only provided a copy of the recording. This requires us to interpret K.S.A. 22-3433 to determine whether substantial compliance with its provisions is possible when a written transcript is not supplied to a party. Statutoiy inteipretation is a question of law subject to unlimited review. State v. Schow, 287 Kan. 529, 535-36, 197 P.3d 825 (2008).
The rules of statutory interpretation are well known, beginning with the fundamental rule that we give effect to the legislature’s intent as it is expressed in the statute. Courts must apply a statute’s language when it is clear and unambiguous, rather than determining what the law should be, speculating about legislative intent, or consulting legislative history. State v. Valladarez, 288 Kan. 671, 675-76, 206 P.3d 879 (2009). The State does not cite any case law supporting the proposition that substantial compliance with K.S.A. 22-3433 is sufficient.
Looking only at the legislation’s plain language, the State was instructed to provide a written transcript if it wanted to use a recording of the child victim’s prior oral statement. The statute does not contain an explicit substantial compliance provision. But on occasion, this court has determined substantial compliance maybe sufficient even if such a provision is not included in a statute. See Cure v. Board of Hodgeman County Comm’rs, 263 Kan. 779, 782-83, 793, 799-800, 952 P.2d 920 (1998) (substantial compliance with statutes governing the regulation of elections is sufficient when the election has been held and the voters have spoken); City of Lea-wood v. City of Overland Park, 245 Kan. 283, 286, 777 P.2d 830 (1989) (substantial compliance with statutes governing annexation of property for a city’s boundaries is sufficient). This case law suggests taking a practical approach focused on a statute’s purposes and whether the challenged act or omission impedes the rights provided for in the statute.
But it is more common for the legislature to specify that substantial compliance may suffice by including a provision to that effect in the statute. See K.S.A. 2009 Supp. 12-105b(d) (substantial compliance with notice provisions constitute valid filing); K.S.A. 17-7673(b) (substantial compliance with requirements sufficient to form limited liability company); K.S.A. 19-4710 (complaint is deemed sufficient if it substantially complies with form); K.S.A. 19-4712 (notice to appear is deemed sufficient if it substantially complies with form); K.S.A. 2009 Supp. 26-506(b) (notice of hearing is deemed sufficient if it substantially complies with form); K.S.A. 2009 Supp. 38-2237(a) (service of process completed when substantially complied with the provision); K.S.A. 39-7,140(f) (valid service effected if substantial compliance with requirements); K.S.A. 40-2115 (hearings with insurance commissioner must substantially comply with K.S.A. 40-281); K.S.A. 58a-602(c)(l) (setdor may revoke trust through substantial compliance with trust terms); K.S.A. 2009 Supp. 59-2129(d) (consent for adoption deemed sufficient if substantially complies with form); K.S.A. 60-204 (substantial compliance with methods of service of process shall effect valid service); K.S.A. 60-302 (summons sufficient if it substantially complies with form). In those instances, our courts honor that statutory flexibility.
In response to this appeal, the State asks us to write into the law an exception contradicting the specific and unambiguous statutoiy language that requires each party to have an opportunity to both view the recording and be provided with a written transcript before the recording’s admission into evidence. We cannot do so. The legislature’s plain language specifies a prior recorded oral statement of a child victim under 13 years of age is not admissible unless the requirements set out in K.S.A. 22-3433(a)(l)-(9) are satisfied. The State performed only one step in what is plainly a two-step process specified by our legislature. Appellate courts must apply a statute’s language when it is clear and unambiguous. Valladarez, 288 Kan. at 675. In this instance, the statute is plain and unambiguous. Accordingly, we must reject the State’s argument that it could ignore the statutorily mandated written transcript requirement.
But even if the statute provided for substantial compliance, giving access to only the recording — without providing a written transcript — would not satisfy the mandate for a written transcript. Substantial compliance requires fulfilling the essential matters necessary to assure that every reasonable statutory objective is satisfied. In re Adoption of X.J.A., 284 Kan. 853, 863-64, 166 P.3d 396 (2007). A recording alone is not sufficient because a child’s recorded statement may be difficult to comprehend or subject to interpretation where inaudible. For a defendant, the written requirement makes clear what the State plans on telling the jury about the child’s recorded statement. Simply producing a copy of the recording, as was done here, did not give the defense the knowledge that reasonably would be expected from such a statutory mandate. For these reasons, we disagree with a recent Court of Appeals decision released after Martinez’ case was briefed and argued that found the State’s failure to produce a written transcript of a child victim’s videotaped interview as required by K.S.A. 22-3433 to be merely a technical error. State v. Waddell, No. 100,517, unpublished Court of Appeals opinion filed November 13, 2009, slip op. at 3-4, pet. for rev. filed December 14, 2009 (pending). The district court erred by admitting the recording into evidence when the State failed to fulfill the statutory requirement.
With this decision made, we must next consider whether the video recording was admissible through some other statutory means. The State, as an alternative argument, contends the Sunflower House video was admissible as a prior consistent statement of a rape victim under State v. Washington, 226 Kan. 768, 602 P.2d 1377 (1979). In Washington, this court held that evidence the victim made a prior consistent statement alleging rape or assault with intent to commit rape was admissible to corroborate the victim’s testimony. 226 Kan. at 770; see 65 Am. Jur. 2d, Rape § 61, pp. 600-01.
But the problem with the State’s argument is that statements permitted under the Washington hearsay exception are only admissible to corroborate the victim’s testimony, not as independent evidence of the offense. See 226 Kan. at 770. In this case, the primary purpose for admitting the video was to prove Martinez committed rape because the video contained the only statement where A.G. said there was penetration. In addition, we note the district court did not issue a limiting instruction that the video was only admissible to corroborate A.G.’s trial testimony as would be required under the Washington hearsay exception. This does not provide an alternative ground for admission in this case. And it would not apply in other instances involving recorded child victim statements because the Washington common-law exception contradicts the statutory language in K.S.A. 22-3433(a).
In addition to the State’s alternative argument, we have also considered sua sponte whether the Sunflower House video was admissible as a previous statement by a witness present at trial under K.S.A. 2009 Supp. 60-460(a). This statutory provision allows admission of a previous statement made by a person who is available for cross-examination. Neither party addressed this particular exception, but we do so here to be comprehensive and because under our facts A.G. testified at trial and was subject to cross-examination.
Under our statutory interpretation rules, the more specific statute must control over a more general statute. In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008). K.S.A. 22-3433, which pertains to a previously recorded oral statement of a child victim under 13 years of age, is more specific than the general hearsay exception available under K.S.A. 2009 Supp. 60-460(a). Therefore, the more specific provisions in K.S.A. 22-3433 requiring both production of the recording and a written transcript controls the admissibility of such evidence in these circumstances. This statutory exception does not provide an alternative basis for the videotape’s admission into evidence.
To summarize, the district court erred by admitting the Sunflower House video because strict compliance with K.S.A. 22-3433 is required. In addition, the video was not admissible on other grounds.
Having made these determinations, we must next consider whether the videotape’s admission constitutes reversible error. The erroneous admission of evidence is reversible error only if it is determined that a refusal to remand would be “inconsistent with substantial justice” under K.S.A. 60-261. See State v. Boggs, 287 Kan. 298, 318-19, 197 P.3d 441 (2008).
At the outset, we consider that the juiy acquitted Martinez on the rape charge. This indicates the testimony regarding penetration contained on the videotape carried less weight with the jury than the victim’s live testimony at trial. Reaching this conclusion is reasonable because the videotape contained the only evidence sufficient to have justified a conviction of rape. Therefore, the juiy’s acquittal on the rape charge justifies our finding the videotape’s admission was harmless error.
But this conclusion is not the final inquiry into whether refusing to remand this case would be inconsistent with substantial justice. To make a full determination, we must decide next whether there was sufficient evidence to support the conviction of attempted rape based on what evidence was presented at trial without the videotape.
The Attempted Rape Conviction
To determine whether there was sufficient evidence to support the attempted rape conviction, we must first consider the elements of the offense. Rape includes “sexual intercourse with a child who is under 14 years of age.” K.S.A. 21~3502(a)(2). Sexual intercourse is defined as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” K.S.A. 21-3501(1). Attempt is defined as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301; See PIK Crim. 3d 55.01.
This court defines the elements of attempted rape under K.S.A. 21-3502(a)(2) as requiring proof a defendant:
“(1) [P]erformed an overt act toward penetrating the sexual organ of a female child under the age of 14; (2) performed that act with the intent to penetrate the sexual organ of a female child under the age of 14; and (3) failed to penetrate the sexual organ of a female child under the age of 14.” State v. Peterman, 280 Kan. 56, 60, 118 P.3d 1267 (2005).
Martinez argues there was insufficient evidence regarding two elements — intent to commit rape and failure to complete the commission of rape. He contends the evidence might have been sufficient to sustain a conviction for aggravated indecent liberties with a child, which was not charged in this case, but he claims it was not enough to demonstrate attempted rape. The State argues the evidence was sufficient, and the district court agreed. Due to the claimed insufficiency in the evidence, Martinez makes a related argument that it also was error for the district court to instruct on attempted rape, although he concedes he did not object to the giving of this instruction at trial. We will consider that argument after analyzing the evidence.
Our standard of review when sufficiency of the evidence is challenged following conviction in a criminal case is whether, after reviewing all the evidence, viewed in a light most favorable to the prosecution, we are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
With this standard in mind, we will consider separately whether there was sufficient evidence for the jury to convict on attempted rape, without consideration of the videotape, as to intent and failure to complete the rape. In doing so, we note Martinez does not contend there was insufficient evidence of an overt act, which also is an element of the offense, as discussed above. In Kansas, an overt act requires an act beyond mere preparation, which can be considered a first or subsequent step in a direct movement towards completing the crime. State v. Stevens, 285 Kan. 307, 318-19, 172 P.3d 570 (2007). A.G.’s testimony that Martinez pulled her pants down and touched her genital area established this element, and Martinez does not contend otherwise.
Intent to Commit Rape
First, we consider whether the evidence remaining after excluding the videotape established that Martinez intended to penetrate the sexual organ of a female child under the age of 14. The intent required for attempt crimes must be specific to the underlying crime. Peterman, 280 Kan. at 60. Kansas courts recognize intent is very difficult to establish. See State v. Lassley, 218 Kan. 758, 762, 545 P. 2d 383 (1976) (It is very “difficult, if not impossible, to show [intent] by definite and substantive proof.”)- This is particularly true in a case such as this because the conviction rests entirely upon a child witness’ testimony.
But intent may be inferred from “ ‘acts, circumstances, and inferences reasonably deducible therefrom.’ ” State v. Salcido-Corral, 262 Kan. 392, 398, 940 P.2d 11 (1997) (citing State v. William, 248 Kan. 389, 402, 807 P.2d 1292, cert. denied 502 U.S. 837 [1991]). Evidence of attempted penetration is not required to establish attempted rape. State v. Gonzales, 245 Kan. 691, 698, 783 P.2d 1239 (1989); State v. Hanks, 236 Kan. 524, 529, 694 P.2d 407 (1985).
Other cases have reviewed whether there was sufficient evidence of intent. In Gonzales, 245 Kan. at 696-98, this court upheld a defendant’s conviction of attempted rape despite challenges to the sufficiency of the evidence of intent to commit rape. In that case, the defendant was convicted of felony murder and attempted rape. He argued there was insufficient evidence to prove the murder was committed during the commission of an attempted rape when he admitted killing the victim, an adult female, after she refused to indulge in anal sex. Gonzales asserted the State erroneously charged him with attempted rape instead of attempted aggravated criminal sodomy.
The Gonzales court held the evidence of attempt to sodomize did not preclude a finding the defendant also intended rape. 245 Kan. at 697. Evidence supporting the attempted rape conviction may be itemized from the court’s decision as follows: (1) the defendant made statements that evening that he wanted to “get lucky” or “get it” from the victim; (2) semen was found on the victim’s front left thigh; (3) her bra had been cut and blood was smeared across her breasts; (4) her underwear was ripped or cut off; (5) the back of her legs and buttocks were covered with dirt; (6) the majority of the wounds were from a frontal attack; and (7) the indentations on the ground suggested someone had spread the victim’s legs and knelt down between them. 245 Kan. at 697-98.
Similarly in State v. Zimmerman, 251 Kan. 54, 833 P.2d 925 (1992), the defendant was convicted of attempted rape, and he argued there was insufficient evidence to find he intended to commit rape because the facts showed his intended offense was voyeurism. The evidence showed an adult female had fallen asleep or passed out in a chair visible from outside an apartment. Two friends also in the apartment heard a loud thump, and one went to check on the victim. The defendant was encountered leaving the apartment’s kitchen. The victim was found in the laundry room adjacent to the kitchen with her pants pulled down. She also suffered a head wound. During the investigation, the defendant told police he “was considering rape, but mainly [he] just looked.” 251 Kan. at 61. This court held there was sufficient evidence to find tire defendant intended to commit rape. 251 Kan. at 61.
In contrast, this court found insufficient evidence of intent to commit rape in only one case. In State v. Carr, 230 Kan. 322, Syl. ¶ 4, 634 P.2d 1104 (1981), overruled on other grounds State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817 (1984), the defendant spent the evening drinking heavily with friends to celebrate his impending marriage. When he returned to his apartment complex, the defendant entered the victim’s apartment. The victim and her boyfriend were asleep in her bedroom. Both awakened to discover the defendant’s hand on the victim’s breast. The defendant leaned forward, looked closely at them, and then fled the apartment. This court held the evidence was insufficient for a rational factfinder to conclude the defendant intended rape. We agreed one could infer a general criminal intent from these facts but not the specific intent to commit rape, despite the defendant’s presence in the bedroom, because the defendant was fully clothed in a room with enough light to show two figures in the bed. 230 Kan. at 327.
Based on our standard of review and the reasonable inferences to be drawn from A.G.’s testimony when viewed in the light most favorable to the prosecution, we hold the evidence was sufficient for a rational factfinder to determine Martinez intended to penetrate the victim’s vagina. Considering only the evidence from A.G.’s testimony at trial, it was established that (1) Martinez pulled her pants down to her knees; (2) he started to do “the bad touch”; (3) he was touching A.G.’s “bottom,” which she clarified was the part of her body where she urinates; (4) he was touching the outside of her body where she urinates; and (5) the part of her body where she urinates was made to bum by his touching her. Our cases hold evidence of attempted penetration is not required. A.G.’s testimony was sufficient for the juiy to reasonably infer Martinez intended to commit rape. We agree with Martinez that the facts also could have supported a conviction of aggravated indecent liberties with a child, but this does not preclude the jury from determining he intended to commit rape, even if there was no direct evidence of intent.
With the intent element established, we next direct our attention to the final element necessary to convict for attempted rape— whether there was evidence Martinez failed to penetrate the sexual organ of a female child under the age of 14 after forming the intent to do so.
Failure to Penetrate
Martinez argues there was insufficient evidence that he was prevented or intercepted from completing the crime. He points out that after A.G. testified he stopped touching her, she was asked if she knew why he stopped. A.G. replied she did not. Martinez denied ever touching her. Martinez claims this evidence left the juiy with only two choices: to believe A.G. and convict Martinez of rape or to acquit him. Martinez claims it was error to allow the jury to consider attempted rape without evidence he was interrupted or prevented from completing the rape.
But Martinez’ argument misstates the law as to what was required to demonstrate a failure to penetrate, and he cites no legal authority supporting his argument that there must be evidence he was prevented or intercepted from completing the crime. K.S.A. 21-3301 defines attempt as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (Emphasis added.) This language offers alternatives to the prosecution in establishing the attempt. The State could produce evidence that a defendant was “prevented or intercepted” in executing the crime or, in the alternative, demonstrate there was a failure to perpetrate the crime. In Peterman, we described proof of this element in the context of attempted rape as simply showing the defendant “failed to penetrate the sexual organ of a female child under the age of 14.” 280 Kan. at 60.
A.G.’s testimony that Martinez stopped touching her genitalia was sufficient given the jury’s determination that he intended to commit rape based on the evidence supporting that finding as discussed above. It was not necessary for the State to prove someone or something prevented Martinez from penetrating A.G.’s sexual organ in order to sustain an attempted rape conviction. A.G.’s testimony at trial was sufficient to justify the jury’s verdict.
The Jury Instruction for Attempted Rape
Having determined there was sufficient evidence to establish the elements of intent to commit rape and the failure to complete the rape, we necessarily dispose of defendant’s related argument that the district court erred by giving the lesser included offense instruction on attempted rape. Martinez concedes he did not object at trial to the attempted rape instruction, so he must show on appeal the instruction was clearly erroneous. See K.S.A. 22-3414(3); State v. Overstreet, 288 Kan. 1, 9-10, 200 P.3d 417 (2009). Because we have determined the evidence sufficient as to the elements of attempted rape, it was not clear error to give the instruction.
The Claim A.G. Made a Prior Allegation of Abuse
Before trial, the State successfully sought an order preventing Martinez from admitting evidence that A.G. previously accused another family member of sexual abuse. Martinez’ attorney admitted he did not know tire “exact circumstances” surrounding this claimed prior allegation, but he proffered that Luttrell (A.G.’s aunt and Martinez’ girlfriend) would testify A.G. previously accused a family member of “doing the same thing to her.”
The State proffered that Luttrell would testify she had no personal knowledge of the incident and did not know whether the alleged touching was sexual in nature. Therefore, the defense had no basis to establish relevancy. The State also proffered that A.G. and A.G.’s mother would deny the allegation occurred. In addition, the State asserted, A.G.’s mother would testify that an 8-year-old cousin stuck his finger in A.G.’s mouth while they were wrestling, but neither A.G. nor her mother accused him of sexual abuse.
Martinez argued this alleged prior accusation was relevant to show A.G. made a false allegation against Martinez to avoid getting in trouble. The defense’s premise was that A.G. was actually in the room with Martinez listening to his new CD, which she was not permitted to do, and A.G. had learned from the prior accusation she could accuse someone of sexual abuse in order to get herself out of trouble. The district court ruled the testimony was irrelevant because Martinez failed to show that “it happened before and she got out of trouble and so therefore she’s doing it this time to get out of trouble.”
On appeal, Martinez argues the district court erred by excluding Luttrell’s testimony about this alleged prior accusation. He argues it was relevant and that there was sufficient evidence proffered to admit the testimony under the same theory advanced at trial— namely that the prior accusation taught A.G. that making a false abuse claim would get her out of trouble. The State counters by arguing first that the evidence was irrelevant because the defense failed to provide any evidence supporting its theory. Then, the State notes A.G. actually testified about the prior allegation by denying it happened, which opened up the subject for the defense, but that the defense did not pursue the subject, so the argument is now waived. We find Martinez’ argument fails because the proffered evidence did not establish a prior accusation of abuse, the alleged prior accusation was false, or that any alleged prior accusation was relevant.
Standard of Review
We review the exclusion of evidence first by determining whether the evidence is relevant. K.S.A. 60-401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” This definition encompasses two components: (1) whether the evidence is probative and (2) whether it is material. State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 (2009); State v. Henson, 287 Kan. 574, 578, 197 P.3d 456 (2008). Probative evidence is evidence that “ "furnishes, establishes or contributes toward proof.’ ” Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998). Whether evidence was probative is reviewed under an abuse of discretion standard. Dixon, 289 Kan. at 69. Material evidence goes to a fact at issue that is significant under the substantive law of the case. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The determination of whether evidence is material is reviewed under a de novo standard. Dixon, 289 Kan. at 69.
Once relevance is established, the evidentiary rules governing admission or exclusion of evidence are applied as a matter of law or in the exercise of judicial discretion, depending on the applicable rule. But, if the adequacy of the legal basis is questioned, appellate courts review this question de novo. Dixon, 289 Kan. at 70; State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).
Analysis
Martinez sought to admit Luttrell’s statement to attack A.G.’s credibility. To do so, he argues a complicated theory to assert relevance, requiring us to supply additional facts. The first stage to his theory is that A.G. fabricated the sexual abuse allegation to avoid getting into trouble for listening to rap music. This is predicated on: (1) A.G.’s testimony that she was listening to the “bad songs” Martinez was playing on the computer that night; and (2) her mother’s testimony that when she walked into the bedroom, A.G. ""[jjumped up real fast and she just gave this look that just didn’t make me feel good,” so she took A.G. into the bathroom and asked A.G. if she did something wrong.
The second stage is based on an assumption there was previously an uproar in A.G.’s family regarding the prior alleged incident. This, the defense offers, taught A.G. she could falsely accuse someone, like Martinez, of sexually abusing her to avoid getting in trouble for listening to rap music. Martinez argued at trial it was unnecessary to have any evidence the prior allegation caused an uproar, was witnessed by A.G., or that the prior allegation got her out of trouble because the jury could call on common experience that “[c]hildren lie to get out of trouble.” This was a leap in logic the district court was not required to make.
This argument fails because the testimony the defense proffered was insufficient to establish a reasonable inference that a prior accusation of sexual abuse occurred. Martinez’ entire argument hinges on Luttrell’s vague statement that A.G. accused someone else of “doing the same thing.” But this ignores the balance of Luttrell’s proffered testimony that she did not know whether A.G. had ever accused someone else of sexual abuse. Her testimony provides no basis to reasonably believe A.G. made an allegation of, or was subjected to, any prior sexual abuse. But even if the defense established this as a prior allegation, Luttrell’s testimony was immaterial because there is no logical connection between the prior allegation and the facts at issue in this case, i.e., whether A.G. fabricated the current allegation against Martinez. The defense had no evidence a prior allegation had caused an uproar and allowed A.G. to avoid punishment. Luttrell’s testimony on this issue did not satisfy the probative or material elements required to establish relevance.
This court recently reached the same result on a similar issue in State v. Bello, 289 Kan. 191, 193-95, 211 P.3d 139 (2009). In that case, the defendant sought to introduce evidence that the victim was sexually abused or witnessed another girl’s abuse and the victim had transferred that experience into the allegations against the defendant. We held the evidence was irrelevant because the defendant’s proffered evidence failed to support a reasonable inference the victim suffered any prior abuse or trauma. 289 Kan. at 195. The same rationale applies here, and the evidence was properly excluded.
Finally, we address whether Martinez may have failed to capitalize on an opening in the evidence that seemingly developed on this point during trial and, therefore, waived this argument. We note that in cross-examining A.G., the defense counsel asked her about a statement A.G. made earlier accusing Luttrell of lying. A.G. responded that “[Luttrell] thought [A.G.’s cousin] did a bad touch to me, but he didn’t.” On redirect, A.G. testified Martinez was the only person who sexually abused her and Luttrell’s statement that someone else abused A.G. was a he.
Based on these exchanges, the State contends the defense could have recalled Luttrell and pursued whether the State waived the order in limine. But we believe this argument stretches our legal realities too far. The evidence admitted fell short of what Martinez sought to introduce and would not have established that A.G. accused someone else of sexual abuse. This exchange is not enough for us to find Martinez waived his claim that the district court improperly excluded the evidence. We base our ruling on the earlier reasoning stated above.
The Prosecutorial Misconduct Claim
Martinez next raises three prosecutorial misconduct claims. Two relate to statements made during closing arguments. The other claims the prosecutor impermissibly bolstered A.G.’s credibility at the end of her trial testimony by asking A.G. whether she had testified truthfully. Martinez acknowledges he failed to make timely objections to any of these alleged errors.
This court recently clarified that an objection is not required to preserve a claim of prosecutorial misconduct for comments made during closing arguments. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009); State v. Decker, 288 Kan. 306, 314, 202 P.3d 669 (2009). But a timely objection is required to preserve claims about a prosecutor’s questions and the witness’ answers. King, 288 Kan. at 349. Therefore, only the errors claimed during closing arguments are preserved for appeal. For the reasons stated below, we reject these remaining prosecutorial misconduct claims.
Standard of Review
This court employs a two-step analysis for allegations of prose-cutorial misconduct regardless of whether a timely objection is made. First, the court determines whether the prosecutor’s statements exceeded the wide latitude of language and manner afforded a prosecutor in making closing arguments. Inherent in this latitude is the prosecutor’s freedom to argue reasonable inferences from the evidence. Second, the court must determine whether the prosecutor’s comments constitute plain error. This occurs when the statements are so gross and flagrant they prejudiced the jury against the defendant and denied the defendant a fair trial. Decker, 288 Kan. at 314.
The second step requires the examination of three factors: (1) whether the misconduct was so gross and flagrant it denied the accused a fair trial; (2) whether the remarks showed ill will by the prosecutor; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the prosecutor’s statements would not have much weight in the jurors’ minds. 288 Kan. at 315.
But none of these factors is controlling. Further, the third factor can never override the first two factors until the harmlessness tests of both K.S.A. 60-261 (prosecutor’s statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967) (error had little, if any, likelihood of changing the outcome of trial), have been met. Decker, 288 Kan. at 315; State v. Tosh, 278 Kan. 83, 97-98, 91 P.3d 1204 (2004).
Analysis
Martinez’ first objection is to the prosecutor’s statement during closing argument that “[i]f you think that he put his hand on her, but he didn’t stick it in, that’s attempted rape.” When placed in context, we do not believe this statement was prosecutorial misconduct. The statement was made during a thorough explanation of the elements of attempted rape. The prosecutor stated:
“The only difference between [rape] and the lesser included offense of attempted rape is this aspect of penetration. If you read carefully Instruction No. 7 on attempted rape, it says that to establish this charge, the following claims must be proved: That the defendant performed an overt act towards the commission of rape, to wit: He placed his hand on the genital area of [A.G.] — not in — that he did it with intent to commit rape, and that he failed to complete the commission of the crime, which translates to that he did not penetrate her. That’s the only difference.
“If you think that he put his hand on her, but he didn’t stick it in, that’s attempted rape. If you think that he actually put his finger inside where she says that it burned and it hurt— . . . [t]his was a rape.
“But even if you think there wasn’t penetration, this is an attempted rape.” (Emphasis added.)
A review of the entire statement shows it is an accurate recitation of the elements required to prove attempted rape. Martinez’ argument fails on the first step of the prosecutorial misconduct analysis. This did not exceed the wide latitude afforded to the prosecution to argue inferences from the evidence presented.
Martinez’ second objection is a closer call. As the State finished its rebuttal closing argument, the prosecutor made the following statement:
“I’m struck by one thing [A.G.] said during this trial, and that was when [Martinez’ attorney] was asking her on cross-examination why [Martinez] was mad drat night. Why was he upset when he came downstairs and was confronted with all of this? And she said . . . because I told on him. I told what he did to me. Isn’t that what we want our kids to do when something like this happens? We want them to tell. She did that. Let her know she did the right thing.” (Emphasis added.)
Martinez legitimately points out the prosecutor’s statement attempts to divert the jurors’ attention from the evidence and the law to a desire to let a little girl know that reporting such crimes was appropriate, citing State v. Ruff, 252 Kan. 625, 635-36, 847 P.2d 1258 (1983), as analogous. He argues this prejudiced the jurors and exceeded the limits of fair discussion of the evidence. The State claims this statement was “fair comment” because it accurately references A.G.’s testimony that she “telled [sic] on him.” The State also argues this statement was presented merely in addition to its plea to convict Martinez on the evidence. Finally, the State argues the comment was a single statement used to wrap up the evidence and that the entire argument, as a whole, urged the jury to convict on the evidence.
There is no question the prosecutor’s closing remark injects irrelevant decision-making into the jury process. By malting such an avoidable and unnecessary comment, the prosecution risks unraveling its case on appeal. Jurors are to be directed to the evidence in the case, not to concerns outside of their sworn duty. Therefore, the prosecutor’s rallying cry to “[l]et her know she did the right thing” requires close scrutiny to determine its impact upon this conviction.
It should be noted that, although the defense did not challenge it, the State made additional statements elaborating on this same theme. These additional statements occurred earlier in the State’s rebuttal in response to an argument made by Martinez’ counsel. We review the entire argument to determine the extent of the violation and the weight it may have had in the jurors’ minds. During closing arguments, Martinez’ counsel said:
“And if it is a false accusation, think about 10 years from now when she has the maturity to understand what her false accusation has done, how it devastated her family and how that’s going to affect her. Following the Court’s instruction in this case and applying it appropriately to the beyond a reasonable doubt standard is not only going to protect my client as it’s designed to do, it’s going to protect [A.G.] in this case.”
Instead of objecting to the defense counsel’s argument, the prosecutor urged the jury to protect A.G. by “holding her perpetrator accountable and showing [A.G.] that when somebody like [Martinez] puts his hand down her panties and puts his finger in her vagina that there is a consequence to that.” This statement is related to the statement Martinez challenges about urging the jury to show A.G. “she did the right thing.”
Turning to the misconduct analysis, we recognize the prosecution has a duty to argue the cases before it with earnestness and vigor through all legitimate means. King, 288 Kan. at 351; Ruff, 252 Kan. at 634. But the prosecutor also is an officer of the court, occupying a quasi-judicial position with its own responsibilities and traditions. Ruff, 252 Kan. at 634. The prosecutor crosses the line of appropriate argument when that argument is intended to inflame the jury’s passions or prejudices or when the argument di verts the jury’s attention from its duty to. decide the case on the evidence and controlling law. Tosh, 278 Kan. at 90. The State’s comment urging the jury to tell A.G. “she did the right thing” by reporting the incident crosses this line because it appealed to the jurors’ parental instincts and diverted their attention from the evidence and the law.
In Ruff, the case cited by Martinez, this court determined the prosecutor’s closing comments urging the jury to “not allow this conduct to be tolerated” were improper. 252 Kan. at 631, 636. That decision highlighted the prosecutor’s duty to ensure only competent evidence is submitted to the jury and avoid arguments that could prejudice the jurors’ minds, preventing them from deciding the case on the evidence. 252 Kan. at 636. This same duty, of course, is at issue here.
But the comment in Martinez’ case is more analogous to one of the comments found to be improper in Tosh because both comments appealed to the jurors’ parental instincts. In Tosh, this court held that four of a prosecutor’s closing remarks violated the first step in the prosecutorial misconduct analysis. 278 Kan. at 93. One remark came at the end of the closing argument when the prosecutor stated, “ “When [K.T.] was little, and even today, her father failed to protect her. He raped her. You can protect her. You can find him guiliy.’ ” 278 Kan. at 92.
This court held comments urging the jury to protect the victim were designed solely to inflame the jurors’ passions. 278 Kan. at 92. The prosecutor’s comment in this case urging the jury to show A.G. she “did the right thing” served the same purpose. It was irrelevant to the law and the facts. Therefore, we hold the statement exceeded the wide latitude of language and manner afforded the prosecutor. The issue now becomes whether the statement was so gross and flagrant that it prejudiced the jury such that we must reverse the conviction.
As established above, none of the factors comprising the second step in our analysis are individually controlling. While it is possible for the harmlessness factor to override the others if the tests in K.S.A. 60-261 and Chapman are satisfied, this practice is employed with caution because a defendant is entitled to a fair trial regardless of the quantum of evidence against him or her. Tosh, 278 Kan. at 93, 97-98.
In Tosh, this court cautioned there are “degrees of seriousness” and that the three factors used to determine whether an error interfered with a defendant’s right to a fair trial must allow appellate courts to consider those degrees and their likely effects. 278 Kan. at 93-94. The Tosh court also held that the prosecutor’s comment cited above may not have been sufficient by itself to require reversal, but the cumulative effect of all four improper comments did require reversal. 278 Kan. at 94.
In Martinez’ case, the prosecutor’s comment that jurors should send A.G. a message and “[l]et her know she did the right thing” seems less severe than the comments made in Tosh, even though both statements appeal to the jurors’ parental instincts to protect and affirm the child’s beliefs. Unlike Tosh, the prosecutor’s statement here did not suggest A.G. may be harmed again if the jury did not convict. There also was no evidence of ill will. The comment, although avoidable, was isolated in the prosecutor’s rebuttal argument. The prosecutor’s initial closing statements were properly restricted to the evidence and the law. Finally, defense counsel’s own misstep during closing argument cracked the door open to the prosecutor’s rebuttal and led to the improper comment.
Turning to the third factor, whether the evidence against the defendant was of such a direct and overwhelming nature as to render the prosecutor’s statement harmless, it is difficult to find the evidence supporting conviction was direct and overwhelming because the case hinged entirely upon the credibility of A.G.’s testimony. But as discussed above, there was sufficient evidence to sustain Martinez’ conviction of attempted rape under a reasonable doubt standard. The fact that the evidence cannot be characterized as overwhelming does not require us to find the prosecutor’s comment violated Martinez’ right to a fair trial. The weight of one factor should not dominate the analysis, and the combination of a lack of ill will and substantial evidence of guilt is sufficient to find Martinez’ right to a fair trial was not violated.
The Cumulative Error Claim
Martinez next argues that even if the errors alleged above do not amount to error on their own, their collective combination violated his right to a fair trial. It is well recognized the cumulative effect of trial errors may be so great that the errors require reversal. The test is “whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Hoffman, 288 Kan. 100, 109-10, 200 P.3d 1254 (2009).
We have found two trial errors committed in this case: (1) the Sunflower House video’s admission; and (2) one statement made during the prosecutor’s closing argument. We held each to be harmless. They were also unrelated. It cannot be held that the combination of these errors was so prejudicial as to deny Martinez a fair trial.
Defendant’s Age
Based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Martinez next raises two related challenges to his attempted rape conviction and the off-grid sentence imposed. Both arguments are premised on the State’s burden to prove he was 18 years or older as an element of the crime charged under K.S.A. 21-3502 and K.S.A. 21-4643. First, he claims the State’s failure to allege his age in the complaint deprived the district court of jurisdiction to sentence him to life in prison. Second, he argues the district court’s failure to instruct the juiy that it must find he was 18 years or older violated his rights under the Sixth Amendment to the United States Constitution. Both arguments are made for the first time on appeal.
Martinez’ first claim, challenging whether the complaint or information was sufficient to confer subject matter jurisdiction, is a question of law subject to unlimited review by an appellate court. See State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009). Appellate arguments impheating concerns relating to statutory and constitutional interpretation also are subject to unlimited review. 289 Kan. at 365.
In Gonzales, this court held a defendant challenging the sufficiency of the charging document for the first time on appeal must show the alleged defect either: “(1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial. [Citations omitted.]” 289 Kan. at 368.
The State concedes the information charging Martinez did not state his date of birth or allege that he was 18 years of age or older at the time of the offense. But the information did advise him he was charged with an off-grid person felony and specifically listed the elements for rape of a child under 14 years of age in violation of K.S.A. 21-3502. Martinez does not contend preparations for his defense were impaired or that his rights to a fair trial were compromised. Nor has he shown his conviction for attempted rape of a child under the age of 14 affected any subsequent prosecution. We find Martinez was adequately informed of the charge against him and the possible penalty if found guilty. We hold this challenge, which is raised for the first time on appeal, fails to make the necessary showing to deny the district court of its jurisdiction to sentence Martinez for the off-grid offense.
The second challenge relates to the district court’s failure to instruct the jury to determine whether Martinez was 18 years of age or older at the time of the offense. This issue arises from recent decisions involving Jessica’s Law in which we held the failure to allege and instruct on the defendant’s age was error under Ap-prendi. See State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009); Gonzales, 289 Kan. at 371; Bello, 289 Kan. at 199-200. In those cases, the record contained no evidence on which a jury could have based a finding about the defendant’s age, even if the jury was properly instructed. Accordingly, we remanded the cases to the district court for resentencing under the Kansas Sentencing Guidelines Act, rather than under the off-grid sentencing provisions required by Jessica’s Law. Martinez seeks the same sentencing relief in this appeal.
But more recently in State v. Reyna, 290 Kan. 266, 234 P.3d 761 (2010), we considered whether the failure to instruct the jury on this element of the crime was harmless when the trial record contained evidence of the defendant’s age that would have permitted the jury to make the appropriate finding, if properly instructed to do so. In Reyna, we concluded that a harmless error analysis was applicable. 290 Kan. at 682.
The Reyna court analyzed the issue in light of this court’s decisions in State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147, cert. denied 543 U.S. 982, (2004), and State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003), and in light of the United States Supreme Court’s decisions in Apprendi and Washington v. Recuenco, 548 U.S. 212, 222, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006) (concluding that “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error”). Our court in Reyna explained its holding as follows:
“Daniels stands for the proposition that this court will apply the harmless error analysis to the omission of an element from the instructions to the jury when a review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. And Re-cuenco stands for the proposition that characterizing the omission as an Apprendi-type error, i.e., judicial factfinding of the omitted element when that element enhances the maximum applicable sentence, does not change that analysis.” Reyna, 290 Kan. at 681.
There was evidence admitted at trial that Martinez was celebrating his 21st birthday on the date the crime occurred. This was presented during the testimony of the defendant’s father, Martinez’ girlfriend, and the victim’s mother. Further, this testimony was not disputed.
Therefore, there was uncontested evidence before the jury on which it could have based a finding about the defendant’s age at the time of the offense, if properly instructed to do so. This evidence distinguishes Martinez’ case from Morningstar, Gonzales, and Bello, in which there was no evidence presented to the jury about the defendant’s age. As in Reyna, we are convinced the Ap-prencli-type error that occurred in Martinez’ case, when the trial court made the age determination rather than having the juiy make the actual finding, was harmless.
Constitutionality of Sentence
Finally, Martinez argues his sentence under K.S.A. 21-4643 was disproportionate under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. But he did not raise this constitutional issue before the trial court, so the first question is whether the issue is properly before us. We find it is not, and the issue is waived. See Reyna, 290 Kan. at 688-89; State v. Oehlert, 290 Kan. 189, 191-93, 224 P.3d 561 (2010); State v. Robison, 290 Kan. 51, 53-54, 222 P.3d 500 (2010); State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009); State v. Spotts, 288 Kan. 650, 652-54, 206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, 159-61, 199 P.3d 1265 (2009); State v. Ortega-Cadelan, 287 Kan. 157, 159-61, 194 P.3d 1195 (2008).
As outlined above, Martinez’ conviction and sentence are affirmed.
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The opinion of the court was delivered by
Beier, J.:
Sarah Sweet-McKinnon, the Chief Public Defender for the Reno County Public Defender s office, appeals a judgment finding her guilty of direct civil contempt and imposing a $1,000 per day coercive sanction. The contempt judgment and sanction arose out of McKinnon’s refusal to testify under subpoena by the State concerning a statement made by a former client, who expressed an intent to commit perjury in the prosecution of defendant Valerie Gonzalez. We transferred the appeal from the Court of Appeals on McKinnon’s motion pursuant to K.S.A. 20-3017.
Factual and Procedural Background
In early 2007, McKinnon was appointed to represent defendant Gonzalez on a charge of first-degree murder. McKinnon or one of the attorneys she supervised in the Reno County Public Defender’s Office represented another defendant on an unrelated case who was in custody at the Reno County Jail at the same time as Gonzalez. At some point, the other client informed her counsel that she intended to commit perjury in Gonzalez’ case. The public defender’s office filed a motion to withdraw from the other client’s case. The case against Gonzalez was dismissed in June 2007.
In January 2009, the State refiled the case against Gonzalez, and McKinnon was again appointed to represent her. The new complaint listed several endorsed witnesses who had not been fisted on the 2007 complaint, seven of which were former clients of the public defender’s office who had been housed at the Reno County Jail at the same time as Gonzalez in 2007. Among them was the former client who had expressed the intent to commit perjury in Gonzalez’ case.
Given the seven newly endorsed witnesses, McKinnon filed a motion to withdraw as Gonzalez’ attorney. The motion included the following statements:
“3. In all of the prior representations of the seven prior Public Defender clients, the movant has actual information by virtue of the prior representation that would severely restrict the scope of cross-examination of these prosecution witnesses to avoid possible violation of the attorney client privileges of the state’s witnesses, including, but not limited to:
‘a. A statement by a former client of the Public Defender’s office that was made during representation that the prior client intended to commit perjury in Ms. [Gonzalez’] case, who is now a prosecution witness.’ ”
The district judge granted McKinnon’s motion to withdraw and appointed new counsel for Gonzalez.
The State then filed a motion to issue a subpoena for McKinnon to appear and testify at Gonzalez’ preliminary hearing. The motion was based on Kansas Rule of Professional Conduct (KRPC) Rule 3.8(e) (2009 Kan. Ct. R. Annot. 565), which prohibits a prosecutor from subpoenaing a lawyer in a criminal proceeding “to present evidence about a past or present client unless the prosecutor reasonably believes” the evidence is not protected by privilege, is essential to the successful completion of the prosecution, and “there is no other feasible alternative to obtain the information[.]” In its motion, the State requested that the district judge make findings on each of the KRPC 3.8(e) factors. The State explained it was using this unusual procedure out of an “abundance of caution and in light of the serious nature of causing a subpoena [to issue] for a criminal defense attomey[.]”
At the hearing on the motion, the State called Reno County Police Detective John Moore. Moore had conducted the investigation to determine which of the State’s endorsed witnesses might have made the statement referenced in McKinnon’s motion to withdraw. Moore’s testimony about those efforts is as follows:
“Q: [Prosecutor] And did you, as part of this investigation in the case, did you attempt to . . . locate and interview the witness endorsed by the State that could possibly be the witness that Ms. McKinnon indicated may intend to commit perjury?
“A: [Moore] Yes.
“Q: Okay. And when you interviewed these particular witnesses, how many total was there?
“A: Sixteen.
“Q: Okay. And were you able to, during the interviews of these witnesses, find any witness who would support or agree with the statement made by Ms. Mc-Kinnon in the motion?
“A: No.
“Q: In fact did some of the witnesses indicate that they never even heard of Ms. McKinnon?
“A: I have at least five who had never heard of her.
“Q: Okay. And the ones who had heard of her, did those witnesses indicate whether or not they had ever discussed the Gonzalez case with Ms. McKinnon?
“A: Not one of the witnesses ever said that they had discussed this case with Ms. McKinnon.
“Q: Okay. Based on this particular investigation, were you able to find any support in the witnesses, or evidence to support the allegation that was made?
“A: No.
“Q: Did you have any other avenues in the investigation to undertake other than doing this particular interview of these witnesses? Did you have any other ways you could go to try to look into it?
“A: No, I’ve tried to locate each and every one of them. I did speak to each and every one of them.
“Q: Did you, in your own mind, have any other avenues of possible investigation other than what you already did?
“A: No.”
The district judge granted the State’s motion to issue the subpoena, ruling that each of the three KRPC 3.8(e) factors had been established.
On the first factor, the district court held that the information sought was not protected by the attorney-client privilege because the crime-fraud exception applied. See K.S.A. 60-426(b)(l) (attorney-client privilege does not apply to communication when sufficient evidence, aside from communication itself, establishes legal service sought, obtained to enable, aid commission, planning of crime).
On the second factor, the district judge held that the information sought was essential to the successful completion of the prosecution. Because the integrity of the prosecution could be affected if a prosecution witness had expressed the intent to commit perjury, and because the prosecutor needed to exercise ethical judgment on whether to present the witness, the judge believed it to be essential that the State know the witness’ identity.
The district judge also found the State had established the third factor — that there was no other feasible alternative to obtain the information — because of Moore’s testimony on his interviews.
The State then issued and served McKinnon with a subpoena to appear and testify. The prosecutor informed McKinnon that he intended to ask her the following questions concerning the former client’s expressed intent to commit perjury in Gonzalez’ case: Who made the statement? When was it made? What words were used? What were the circumstances? In what form did she receive that communication?
McKinnon filed a motion to quash the subpoena, arguing that answering the prosecutor’s questions would violate her duty of client confidentiality under KRPC 1.6 (2009 Kan. Ct. R. Annot. 468) and KRPC 1.9 (2009 Kan. Ct. R. Annot. 490), exposing her to disciplinary action.
The district judge denied McKinnon’s motion to quash. The judge again held that KRPC 3.8(e) supported the subpoena, i.e., that no privilege existed under the first factor and that McKinnon had failed to offer sufficient evidence or argument to rebut the second and third factors. Further, the district judge rejected McKinnon’s arguments about her ethical duty of confidentiality, concluding that the rules did not prohibit McKinnon from revealing the information. Specifically, the judge noted that KRPC 1.6(b)(1) allows an attorney to reveal client confidences to prevent a client from committing a crime, and KRPC 1.6(b)(2) protects an attorney from disciplinary action for revealing confidential client information in compliance with a court order.
Immediately after the district judge’s ruling, the prosecutor called McKinnon to the witness stand. After a few preliminary questions, the prosecutor asked McKinnon who had made the statement set out in paragraph 3.a of her motion to withdraw. McKinnon refused to answer the question. The judge then ordered McKinnon to answer the question. She again refused. The judge found McKinnon in direct civil contempt of court and imposed a fine of $1,000 per day until the contempt was purged by Mc-Kinnon’s agreement to answer the question.
McKinnon posted an appeal bond to stay execution of the contempt order pending this appeal. She now raises three interlocking issues. First, she challenges the district judge’s decision that the information was not protected by attorney-client privilege because of the crime-fraud exception under K.S.A. 60-426(b)(l). Second, if we determine that the district judge’s decision on applicability of the attorney-client privilege was erroneous, McKinnon argues, the contempt judgment cannot stand. Third, even if the contempt stands, McKinnon asserts, the coercive sanction is excessive.
The State responds that the district judge properly applied the crime-fraud exception to the attorney-client privilege and that McKinnon was properly ordered to answer the question seeking the name of her former client because a client’s identity does not qualify as a privileged communication. The State also argues that the contempt judgment should stand even if the district court’s decision on privilege was in error, as refusal to comply with a court order is contemptuous even if it is later determined that the order was erroneous. Last, the State contends that the sanction imposed was not an abuse of discretion.
Analysis
To begin our analysis, we must address jurisdiction.
In this appeal from the order finding her in contempt and imposing a sanction, McKinnon’s arguments also are directed at the propriety of underlying rulings on the issuance of the subpoena and the denial of the motion to quash. Although the parties have not questioned our jurisdiction to address the validity of the orders that underlie the contempt judgment, it is our duty to consider the presence or absence of jurisdiction on our own initiative. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007) (subject matter jurisdiction may be raised at any time, even on court’s own motion); State v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 (2005) (“The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative.”).
K.S.A. 20-1205 and K.S.A. 60-2102(a)(4) provide jurisdiction to address the contempt judgment as well as the underlying decisions on the issuance of the subpoena and the motion to quash. K.S.A. 20-1205 provides the right to appeal from a contempt judgment and specifically states that such an appeal is to be taken “in the same manner as is provided by law in civil cases.” The applicable civil appeal statute, K.S.A. 60-2102(a)(4), expressly provides that in an appeal from a final decision, “any act or ruling from the beginning of the proceedings shall be reviewable.” In addition, the United States Supreme Court has made clear that an order underlying a civil contempt judgment is reviewable on appeal of the contempt. See United States v. Mine Workers, 330 U.S. 258, 294-95, 91 L. Ed. 884, 67 S. Ct. 677 (1947) (unlike criminal contempt, validity of disobeyed order may be reviewed in civil contempt context; right to remedial relief falls when the underlying order is proved to have been in error); compare State v. Alston, 256 Kan. 571, 584-86, 887 P.2d 681 (1994) (collateral bar rule prohibits review of the validity of underlying order in criminal contempt appeal, subject to exceptions).
Several standards of review require consideration in resolving this case.
An appellate court reviews a determination that conduct is contemptuous under a de novo standard; contempt sanctions are reviewed for abuse of discretion. State v. Jenkins, 263 Kan. 351, 356, 950 P.2d 1338 (1997); see also In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002) (same).
A district court judge’s decision on a motion to quash a subpoena calling for disclosure of privileged information is governed generally by K.S.A. 2009 Supp. 60-245(c)(3)(A)(iii), which provides: “On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it. . . requires disclosure of privileged or other protected matter and no exception or waiver applies.” Another subsection of the statute provides that a court shall quash or modify a subpoena that “subjects a person to undue burden.” K.S.A. 2009 Supp. 60-245(c)(3)(A)(iv). A further subsection, K.S.A. 2009 Supp. 60-245(c)(3)(B)(in), is worded more permissively, saying the court “may” quash or modify a subpoena under certain circumstances not present here, or “may” order appearance “only upon specified conditions” if “the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.”
We have previously reviewed district court decisions on motions to quash subpoenas for abuse of discretion, despite the statute’s mixed use of “shall” and “may.” See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998) (“Control of discovery is entrusted to the sound discretion of the trial court”; decision quashing subpoena duces tecum reviewed for abuse of discretion); In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 256, 891 P.2d 422 (1995) (abuse of discretion standard applied in reviewing motion to quash an administrative subpoena); In re Pennington, 224 Kan. 573, 577, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979) (abuse of discretion standard applied in reviewing district court’s denial of news reporter’s motion to quash); In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 480, 932 P.2d 1023 (1997) (decision on motion to quash inquisition subpoena reviewed for abuse of discretion).
Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). Under this standard, an appellate court will not disturb a discretionary decision unless no reasonable person would have taken the view adopted by the district court. See Vorhees v. Baltazar, 283 Kan. at 393.
Still, even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court judge’s discretionary decision is based. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000). Because “ ‘[a] district court by definition abuses its discretion when it malees an error of law. . . [t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Kuhn, 270 Kan at 456 (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]); see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (district judge’s discretionaiy decision protected under abuse of discretion standard “if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and taires into account the applicable legal standards”; what constitutes abuse of discretion necessarily varies “depending upon the character of the question presented for determination”).
Moreover, even if a decision is entrusted to the discretion of a district court judge, and he or she correctly understands and applies the controlling legal standards, the facts upon which the discretionary decision must depend may still be challenged on appeal as unsupported by substantial competent evidence in the record. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990) (legal conclusions and fact findings upon which discretionary decision based reviewable for abuse of discretion; district court necessarily abuses its discretion if ruling based on an “erroneous view of the law or on a clearly erroneous assessment of the evidence”); cf. Saucedo v. Winger, 252 Kan. 718, Syl. ¶ 4, 850 P.2d 908 (1993) (“A decision which is contrary to the evidence or the law is sometimes referred to as an abuse of discretion, but it is nothing more than an erroneous decision or a judgment rendered in violation of law.”); see also Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (because abuse of discretion may connote error of law, error of fact, or error in substance, form of trial court’s order, review consists of three parts: “(1) whether the factual basis of the decision is supported by sufficient evidence; (2) whether the trial court has correctly identified and properly applied the applicable legal principles; and (3) whether the trial court’s decision is within the range of acceptable alternatives”).
In Kansas, a district court’s factual findings are reviewed under the substantial competent evidence standard. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007); State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005). In federal court, Fed. R. Civ. Proc. 52(a)(6) requires a “clearly erroneous” standard of review for factual findings. The Kansas substantial competent evidence standard and its federal counterpart are very similar to the abuse of discretion standard. All three provide a great deal of deference to a district court’s decision made within a zone of reasonableness. See Cooter & Gell, 496 U.S. at 400-01 (when an appellate court reviews a district court’s fact findings, the abuse of discretion standard and the clearly erroneous standard are “indistinguishable” as both protect district court determinations that fall “within a broad range of permissible conclusions”).
A district court abuses its discretion only when no reasonable person would take the view adopted by the district court. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). Similarly, substantial competent evidence is that which
“possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” (Emphases added.) Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007).
In addition, as we have held, “[¡Judicial discretion will vary depending upon tire character of the question presented for determination.” State v. Shopteese, 283 Kan. at 340. When a discretionary decision requires fact-based determinations, a district court abuses its discretion when the decision is based on factual determinations not supported by the evidence.
Finally, a de novo standard comes into play in this case on the question of privilege. If the underlying facts concerning the applicability of a privilege are not in dispute, appellate review is plenary. See State v. Jones, 287 Kan. 547, 554, 198 P.3d 756 (2008) (citing Butler v. HCA Health Svcs. of Kansas, Inc., 21 Kan. App. 2d 403, 436-37, 6 P.3d 871 [1999]) (when underlying facts undisputed, existence of attorney-client privilege reviewed de novo).
General Distinction Between Privilege Law and Attorney Ethics Rules on Client Confidences
The parties have argued both the attorney-client privilege and the various disciplinary rules concerning an attorney’s ethical duties with respect to client confidences and, at times, appear to confuse the two. Because there are fundamental and significant differences between these lines of authority and their applicability, it is necessary that we first clarify that we face one and not the other here.
A privilege is a rule of evidence that allows a person “to shield [a] confidential communication or information from compelled disclosure during litigation.” Imwinkelried, The New Wigmore: Evi- dentiary Privileges § 1.1, p. 2 (2d ed. 2009). In Kansas, the attorney-client privilege is statutory. It is found in the code of evidence at K.S.A. 60-426, which reads in pertinent part:
“(a) . . . [E]xcept as otherwise provided by subsection (b) of this section communications found by the judge to have between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege ... (2) to prevent his or her lawyer from disclosing it. . . . The privilege may be claimed by the client in person or by his or her lawyer ....
“(b) .... Such privileges shall not extend (1) to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort. . . .” K.S.A. 60-426.
This statute protects from compelled disclosure certain confidential communications made between an attorney and client in the course of their professional relationship. The privilege applies narrowly because, like all privileges, it operates to deprive the fact-finder of otherwise relevant information. In re Bryan, 275 Kan. 202, 222, 61 P.3d 641 (2003) (citing State ex rel. Stovall v. Meneley, 271 Kan. 355, 373, 22 P.3d 124 [2001]).
In contrast, an attorney’s ethical duty of client confidentiality arises under the Kansas Rules of Professional Conduct and is part of a system of professional ethical standards designed to “provide guidance to lawyers and ... a structure for regulating conduct through disciplinary agencies.” Supreme Court Rule 226, Scope [20] (2009 Kan. Ct. R. Annot. 405). A violation of an ethical rule “should not itself give rise to a cause of action against a lawyer” or “necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.” Supreme Court Rule 226, Scope [20]; see also OMI Holdings, Inc. v. Howell, 260 Kan. 305, 325, 918 P.2d 1274 (1996) (discussing Supreme Court Rule 226; ethics rules do not impose legal duty on attorneys). In contrast to the attorney-client privilege, which is a rule of evidence and applies only when the attorney “may be called as a witness or otherwise required to produce evidence concerning a client[,]” the attorney’s ethical duty of confidentiality under the disciplinary rules “applies in all situations other than those where evidence is sought from the lawyer through compulsion of law.” (Emphasis added.) Comment [5] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 469). Further, in contrast to the narrow scope of the attorney-client privilege, the ethical duty of client confidentiality applies broadly to all information related to representation of a client. KRPC 1.6(a); Comment [5] (2009 Kan. Ct. R. Annot. 468-69). It is expansive because the cloak of confidentiality is intended to “facilitate the full development of facts essential to proper representation of the client[.]” Comments [2] and [4] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 469).
There is some overlap between the ethical duty of confidentiality and the attorney-client privilege. By definition, all communications protected by the attorney-client privilege will be confidential and covered by the ethical duty. K.S.A. 60-426(a) (communication must have been made in professional confidence). That overlap is the reason why the ethical duty of confidentiality requires an attorney to invoke the attorney-client privilege when it is applicable. Comment [13] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 470). But not all client confidences inevitably must be protected through invocation of attorney-client privilege.
This is, at base, a privilege case. McKinnon invoked die attorney-client privilege to prevent her compelled disclosure of what she believed to be confidential client information. Such compulsion of her testimony was and is governed by K.S.A. 60-426 and any court decisions interpreting, construing, and/or applying it.
This is one such decision. The attorney ethics rules on client confidences provide important context to our analysis of the contours of K.S.A. 60-426 attorney-client privilege when a prosecutor attempts to compel a criminal defense attorney to speak, but they do not control it. As the following subsections of our analysis illustrate, another attorney ethical rule, KRPC 3.8(e) (2009 Kan. Ct. R. Annot. 564), does provide an essential overlay to the privilege statute and K.S.A. 2009 Supp. 60-245(c)(3) on motions to quash in situations of this type. It requires certain procedures and proof when a prosecutor seeks a subpoena directed to criminal defense counsel and when the subject of the subpoena seeks to quash such a subpoena.
KS.A. 60-426 Attorney-Client Privilege and KRPC 3.8(e)
Having addressed the general distinction between privilege law and attorney ethics rules on client confidences, we now turn to the extraordinary nature of the situation in this case and the applicable attorney ethics rule, i.e., a prosecutor’s issuance of a subpoena to compel testimony about a former client from a defense lawyer in a criminal proceeding and KRPC 3.8(e). The prosecutor invoked KRPC 3.8(e) to obtain issuance of the subpoena to McKinnon. He did so with good reason. KRPC 3.8(e) speaks directly to the prosecutor’s ethical obligation in such a mercifully rare scenario, and it prohibits a prosecutor from subpoenaing a defense lawyer in a
“criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information.” 2009 Kan. Ct. R. Annot. at 565.
At least three underlying principles are evident in the language of this rule.
First, the prosecutor’s role in our criminal justice system is unique, and it carries concomitant responsibilities. The prosecutor is a representative of the government in an adversary criminal proceeding, which means he or she must be held to a standard not expected of attorneys who represent “ordinary” parties to litigation. Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). As we stated in State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000):
“A prosecutor is a servant of the law and a representative of the people of Kansas. . . . Sixty-five years ago the United States Supreme Court said that the prosecutor represents
‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Berger v. United States, 295 U.S. [at] 88.” 268 Kan. at 510.
The comments to KRPC 3.8, Comment [1] (2009 Kan. Ct. R. An-not. 565) make this explicit: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”
Second, Rule 3.8(e)(l)’s near-total prohibition on subpoenas directed to an attorney to obtain evidence protected by privilege reinforces the indispensability of attorney-client privilege in the effective and efficient functioning of the administration of justice. The attorney-client privilege is the oldest of the common-law privileges and exists “to encourage full and frank communication between attorneys and their clients” in order to “promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981); see also State ex rel. Stovall v. Meneley, 271 Kan. at 373 (privilege fosters candid communication); Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, Syl. ¶ 10, 824 P.2d 933 (1992) (privilege “should not be set aside lightly”).
Third, the limitations that KRPC 3.8(e)(2) and (3) place on the power to compel an attorney to provide nonprivileged evidence about a client “to those situations in which there is a genuine need to intrude in the client-lawyer relationship” communicate a general unwillingness to intrude. See Comment [4] to KRPC 3.8 (2009 Kan. Ct. R. Annot. 566). These limitations are based on “the generally accepted principle that the attorney-client relationship should not be disturbed without cause.” United States v. Colorado Supreme Court, 189 F.3d 1281, 1288 (10th Cir. 1999) (construing Colorado’s equivalent to KRPC 3.8[e]). In Colorado Supreme Court, the Tenth Circuit explained the bases for the special protections the law affords the attorney-client relationship:
“The importance of the attorney-client relationship is evidenced by the various privileges which protect it. The attorney-client privilege is ‘one of the oldest recognized privileges for confidential communication known to the common law’ and works to foster the underlying relationship. Upjohn Co. v. United States, 449 U.S. ... [at] 389 ...; see also Swidler & Berlin, 524 U.S. 399, 141 L. Ed. 2d 379, 118 S. Ct. 2081, 2084 (1998). Similarly, the work product privilege fosters
‘the general policy against invading the privacy of an attorney’s course of preparation [which] is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.’
Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947). The legal profession’s ‘ethical obligation’ of confidentiality is a corollary to these privileges. See Upjohn Co., 449 U.S. at 391, 101 S. Ct. 677 (citing ABA code of Professional Responsibility, 4-1).” United States v. Colorado Supreme Court, 189 F.3d at 1287.
We also note that discovery limitations imposed on parties seeking attorney work product are similar to the need-based limitations of KRPC 3.8(e)(2) and (3). The work product rule, codified at K.S.A. 60-226(b)(4), permits discovery of attorney work product only upon “ ‘ “a showing that the party seeking discovery has a substantial need for the material and cannot without undue hardship obtain the substantial equivalent by other means.” ’ ” Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 218, 50 P.3d 66 (2002) (quoting Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 426, 997 P.2d 681 [2000]).
The work-product limitations are based on policy considerations that are similar to those underlying the attorney-client privilege. “ ‘[W]ork product immunity rests on the idea it is necessary to preserve the independence of the lawyer and thus, indirectly, the adversary system.’ [Citation omitted.]” Wichita Eagle & Beacon Publishing Co., 274 Kan. at 218. Specifically, the work product rule is based on
“ ‘the need for the lawyer handling a case to have full rein to develop his theory and strategy in the case if the adversary system is to work effectively. To perform this role the lawyer needs to be able to work without fear of disclosure, at least in the earlier stages of preparation. And he needs protection from tire possibility that he will be cast in the role of a witness and, even worse, of a witness antagonistic to other witnesses upon whose testimony his client’s case may depend.’ [Citations omitted.]” 274 Kan. at 218-19.
The requirement that there be a genuine need in order to compel an attorney to provide information relating to representation of a client found both in the work-product rule and in KRPC 3.8(e)(2) and (3) also implicitly recognizes the chilling effect such a subpoena can have on the trust that is an essential component of the attorney-client relationship. United States v. Colorado Supreme Court, 189 F.3d at 1288 (client’s concern over whether attorney will testily against him, withdraw “inevitably” undermines important trust, openness); United States v. Klubock, 832 F.2d 649, 653 (1st Cir. 1987) (Klubock I), vacated by 832 F.2d 664 (1st Cir. 1987) (equally divided en banc court) (Klubock II) (discussing Massachusetts ethics rule similar to KRPC 3.8[e], noting problems inherent in such subpoenas include driving “a chilling wedge between the attomey/witness and his client,” causing client to be “uncertain at best, and suspicious at worst, that his legitimate trust in his attorney may be subject to betrayal”); see also Whitehouse v. United States Dist. Court for Dist. of Rhode Island, 53 F.3d 1349, 1358 (1st Cir. 1995) (noting decision in Klubock I vacated because court sitting en banc equally divided; nevertheless approving Klubock I rationale).
The need-based requirements of KRPC 3.8(e)(2) and (3) also implicitly recognize the potential for abuse and harassment that exists when a prosecutor issues a subpoena to opposing defense counsel. Potential misuse includes interference with a defendant’s Sixth Amendment right to counsel by diverting the attorney’s time and resources from the client through creation of a “second front” in the litigation and, ultimately, by forcing counsel’s withdrawal or disqualification. See Klubock I, 832 F.2d at 653-54; Whitehouse, 53 F.3d at 1358.
At the time the district judge considered issuance of the subpoena to McKinnon in this case, we had made no statement that he was obligated to conduct a KRPC 3.8(e) analysis. It has not previously been discussed in interpreting, construing, or applying attorney-client privilege under K.S.A. 60-426. However, the prosecutor’s instinct in seeking judicial intervention before seeing that the subpoena was issued and served and in invoking KRPC 3.8(e) in his motion for the subpoena was correct. Likewise, the judge’s decision to follow the prosecutor’s lead on this point, evaluating the three factors of KRPC 3.8(e) before permitting the subpoena to be issued was correct. The arguments pursued and procedures followed by the prosecutor and judge demonstrate their appreciation for the extraordinary nature of the action sought and the essential quality of the relationship McKinnon believed herself duty-bound to protect. Weighty interests are at stake when the issuance of such subpoenas is contemplated, and it is appropriate— indeed, we decide today necessary — to proceed with extreme caution.
In view of the role and importance of a trustworthy and confidential attorney-client relationship, particularly in our adversary system of criminal justice, and of the potential for damage to that system if the relationship is too cavalierly invaded or compromised, we hereby adopt the procedure followed here as a requirement. Moreover, we approve KRPC 3.8(e) as the analytical rubric for a district court judge considering a prosecutor s motion for issuance of a subpoena to compel criminal defense counsel to testify about a current or former client’s confidential information. A judge may not issue such a subpoena unless the prosecutor files a motion and establishes that (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information.
The first of the factors, the existence of a privilege under K.S.A. 60-426, acts as a threshold consideration, as a privilege generally cannot be overcome by a showing of need. See Admiral Ins. v. United States Dist. Court for Dist. of Ariz., 881 F.2d 1486, 1494-95 (9th Cir. 1989) (privilege takes precedence over need for information); The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771, 776-77 (Ky. 2005) (“when a communication is protected by the attorney-client privilege it may not be overcome by a showing of need by an opposing party to obtain the information contained in the privileged communication”); compare K.S.A. 2009 Supp. 60-245(c)(3)(A)(iii) (subpoena shall be quashed if information sought protected by privilege) and K.S.A. 2009 Supp. 60-245(c)(3)(B)(i) (in considering a motion to quash or modify subpoena for confidential trade secrets or commercial information, if issuing party shows substantial need for the information, court may impose protective conditions on attendance/production); see also Wesley Medical Center v. Clark, 234 Kan. 13, 20-27, 669 P.2d 209 (1983) (recognizing difference between absolute privilege, qualified privilege; absolute privilege makes need irrelevant; qualified privilege allows court to control discovery of nonprivileged confidential information based on considerations that include need).
Accordingly, if the evidence the prosecutor seeks is protected from disclosure by the statutory attorney-client privilege, the KRPC 3.8(e) criteria cannot be met and the subpoena cannot issue, regardless of whether the information is essential to the prosecution and there is no other feasible alternative to obtain the information. If, however, the prosecutor establishes that the information is not protected by the privilege, then the last two factors must also be established in order to approve the issuance of the subpoena.
If the subpoena is approved and served, the attorney subject to the subpoena may file a motion to quash. The grounds for quashing the subpoena may include a challenge to the existence of any of the three KRPC 3.8(e) factors, as well as any of the other factors fisted in K.S.A. 60-245(c). On such a motion to quash, the initial determinations made on the KRPC 3.8(e) factors in order to issue the subpoena have no preclusive effect, as those determinations were made without the participation of the attorney subject to the subpoena. Thus the State retains the burden of demonstrating the existence of each of the KRPC 3.8(e) factors, with one modification. If the attorney invokes the attorney-client privilege, the attorney has the burden to show the privilege applies. State ex rel. Stovall v. Meneley, 271 Kan. at 374 (party asserting attorney-client privilege bears burden of proof to establish all essential elements of it). If, on the other hand, the State contends an exception to the privilege applies, the State has the burden of establishing the existence of tire exception. See Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. at 60-61 (party seeking to invoke crime-fraud exception bears burden of making out prima facie case of fraud); see also 9 A.L.R. 6th 363, Crime-Fraud Exception to Attorney-Client Privilege in State Courts: Contemplated Crime (recognizing general rule that party asserting crime-fraud exception bears burden of establishing prima facie case of contemplated fraud).
If the court concludes that the information sought is protected by privilege, the subpoena must be quashed. If the court finds no privilege applies, in order to uphold the subpoena, the court must find both that the evidence is essential to the successful completion of an ongoing investigation or prosecution and that no other feasible alternative exists to obtain the evidence.
The new rule of this case is consistent with our previous rulings affirming that a prosecutor’s role is to see that justice is done, not merely to prevail in his or her cause. For this reason, the line between disciplinary rules of conduct and the prosecutor’s duty to “refrain from improper methods calculated to produce a wrongful conviction” is not always distinct. Berger v. United States, 295 U.S. at 88.
For example, prosecutors have both an ethical duty and a legal duty as part of substantive law to disclose exculpatory evidence to the defense. Compare KRPC 3.8(d) (2009 Kan. Ct. R. Annot. 564) and Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957 (2008) (citing Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 [1963]) (withholding of exculpatory evidence by prosecution implicates defendant’s constitutional rights, considered prosecu-torial misconduct).
Similarly, a prosecutor has both an ethical duty and a legal duty as part of substantive law to refrain from offering personal opinions concerning certain matters, including the credibility of a witness and the guilt of the accused. Compare KRPC 3.4(e) (2009 Kan. Ct. R. Annot. 552) and State v. Pabst, 268 Kan. at 506, 510 (court relies upon KRPC 3.4[e], American Bar Association Standards for Criminal Justice [3d ed. 1993] to hold prosecutor’s comments on witness credibility improper, possibly leading to violation of defendant’s right to fair trial). The court’s analysis in Pabst knitted together the prosecutor’s duty as a representative of the State and the duties imposed under ethics rules:
“[A]s we have observed, [a prosecutor s expressing a personal opinion on the credibility of a witness] is expressly forbidden by both the KRPC 3.4 and the ABA Standards for Prosecutors, 3-5.8 Commentary, Personal Belief. Here an assistant attorney general from the office of the attorney general criminal litigation division introduced into the case his personal opinion of Pabst’s credibility. He ignored his special obligation as a prosecutor to avoid improper personal insinuations. Because he represented the State of Kansas the jury might have been misled into thinking his personal opinions were validated by the weight of the State of Kansas. Such prosecutorial vouching places the prestige of the State behind the prosecutor’s personal assurances.” 268 Kan. at 510-11.
Our decision today also is consistent with the well-established principle that district courts have the authority, independent of a statutory privilege, to prevent or limit the power of compulsory process when necessary to prevent abuse, harassment, undue burden or expense, to manage litigation, to prevent violation of constitutionally protected interests, and to protect confidential matters. Without exception, our statutes and case law recognize the district court’s necessary authority to prevent or limit the power to compel disclosure of information in virtually every aspect of the civil and criminal litigation process. Statutes providing this authority include: K.S.A. 60-226(b)(4), limiting discovery of an attorney’s nonprivileged work product materials by requiring the party seeking the materials to establish substantial need and inability to obtain the substantial equivalent by other means without undue hardship; K.S.A. 60-226(c), providing power to issue protective orders in the discovery process to protect a party from annoyance, embarrassment, oppression, or undue burden or expense; K.S.A. 60-245(c)(3)(A)(iv), providing broad power to quash subpoena that subjects a person to undue burden); and K.S.A. 60-245(c)(3)(B)(i), providing that a court may quash or modify a subpoena that requires disclosure of trade secret or other confidential research, development, or commercial information, unless a showing of substantial need is made, and that, if substantial need is shown, the court may impose protective conditions on any disclosure. Under case law, subpoenas are not to be unreasonable or oppressive. See In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 256, 891 P.2d 422 (1995). Subpoenas in aid of civil or criminal litigation are subject to a stringent relevancy requirement. See State ex rel. Stephan v. Clark, 243 Kan. 561, 568, 759 P.2d 119 (1988). Inquisition subpoenas under K.S.A. 22-3101 are subject to the district court’s inherent power to prevent prosecutorial abuse of the judicial process. See State ex rel. Cranford v. Bishop, 230 Kan. 799, 800-01, 640 P.2d 1271 (1982) (judicial inquisition subpoenas under K.S.A. 22-3101[l]); Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978) (pros-ecutorial inquisition subpoenas under K.S.A. 22-3101[2]). When an inquisition subpoena under K.S.A. 22-3101(1) intrudes on a constitutionally protected privacy interest, the district court’s inherent power to prevent abuse of the judicial process requires the court to balance the State’s compelling interest in pursuing criminal investigations, the privacy rights invaded, the State’s need for access, protective safeguards to prevent unauthorized disclosure, and other public policy considerations. Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006). A district court considering a motion to quash a grand jury subpoena on grounds that it is overly burdensome or intrudes on privacy interests must balance the grand jury’s need for the materials against the burden or intrusion. Tiller v. Corrigan, 286 Kan. 30, 182 P.3d 719 (2008).
The new rule of this case requiring a motion and approval of the court before a prosecutor can arrange to issue a subpoena for testimony by criminal defense counsel also is consistent with the American Bar Association’s inclusion of such a requirement in the 1990 amendment to Rule 3.8 of the Model Rules of Professional Conduct. See A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, pp. 509-10 (2006). Although the ABA had dropped the judicial approval language in 1995, long before Kansas adopted the current provisions of Rule 3.8(e) in 2007 (2009 Kan. Ct. R. Annot. 564-65), the decision to omit the language was due solely to discomfort with state court enforcement against federal prosecutors, not to any conclusion that the attorney-client relationship was undeserving of careful, advance judicial review of any subpoena that would interfere with it. Indeed, proponents of the deletion believed the preap-proval provision was more properly a procedural matter within “the province of the criminal and civil procedural rules, not the ethical rules.” A Legislative History: The Development of the ABA Model Rules of Professional Conduct 512.
And, finally, the new rule’s requirement that prosecutors and district judges employ the KRPC 3.8(e) factors as an overlay on the attorney-client privilege analysis when defense counsel is to be subpoenaed to testify about current or former client confidences in a criminal proceeding is demonstrably workable. The KRPC 3.8(e) factors have been a part of the calculus on issuance and enforcement of such subpoenas in federal courts since 1985, when the Department of Justice adopted internal guidelines in response to growing concerns among the bar over federal prosecutors’ use of diem. See United States Attorneys’ Manual, § 9-13.410 (Sept. 1997) (internal supervisory approval mandatory to issue subpoena to attorney for client information, with approval conditioned on Rule 3.8[e] factors); Stern v. United States Dist. Court for Dist. of Mass., 214 F.3d 4, 8-9 (1st Cir. 2000) (tracing history of Model Rule 3.8 subpoena provision, citing United States v. Perry, 857 F.2d 1346, 1347-48 [9th Cir. 1988], which cites § 9-2.161[a] of 1985 version of United States Attorneys’ Manual).
Judicial preapproval for issuance of a subpoena to an attorney for evidence concerning a present or former client also has been a part of the Virginia rules of criminal procedure since 1987. See Va. Code Ann. Sup. Ct. R. Criminal Practice and Procedure, Rule 3A:12(a) 1987 Supp. In 2000, the Virginia Supreme Court amended its ethical rules, specifically deleting from its version of Rule 3.8 the requirement that a prosecutor obtain judicial approval prior to issuing such a subpoena, but the judicial approval requirement in the criminal procedure code remained. See Va. Code Ann. Sup. Ct. R. 3.8, Committee Commentary (provision requiring judicial approval to subpoena attorney deleted because of “prevailing case law”; local federal district court does not require prior approval).
Evaluation of This Case Under the KRPC 3.8(e) Rubric
Now that we have established the legal rules and procedures governing the situation before us, we turn to our evaluation of the district judge’s assessment of the evidence before him and his legal rulings based on that assessment. The facts of the information already disclosed by McKinnon are undisputed, as are the facts of the detective’s investigation, the wording of the question the prosecution asked, and her refusal to answer.
First Factor Under KRPC 3.8(e)
In her brief, McKinnon challenges the district judge’s determination on the first KRPC 3.8(e) factor — that the attorney-client privilege did not apply because of the crime-fraud exception. In her view, there was nothing other than the former client’s communication itself to demonstrate the client’s intention to obtain legal advice to enable or assist in the planned perjury. This, she argues, is inadequate to qualify under K.S.A. 60-426(b)(l), which requires “sufficient evidence, aside from the communication ... to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime.” (Emphases added.) If, as a threshold matter, the attorney-client privilege applies, the three KRPC 3.8(e) factors cannot be met.
We have already ruled that the district judge appropriately considered the three factors under KRPC 3.8(e), the controlling law for his evaluation of the State’s motion for issuance of the subpoena, and McKinnon’s later motion to quash. However, as discussed above, application of even a proper legal standard in arriving at what is acknowledged to be a discretionary decision can still be reversible error if an appellant demonstrates that the district judge’s application or decision necessarily depended upon factual findings unsupported by substantial competent evidence. See Cooter & Gel v. Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990).
The judge’s determination on the first KRPC 3.8(e) factor necessarily depended on his factual finding that evidence beyond the former client’s communication itself existed and that it supported an inference that the former client sought legal advice to further a crime or planned crime. This was error. On the undisputed record as developed so far and before us, there is no such evidence. McKinnon’s summaiy of the former client’s expression of an intention to commit perjuiy in Gonzalez’ case is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services from the public defender’s office “in order to enable or aid the commission or planning of a crime or a tort.” K.S.A. 60-426(b)(l). No other evidence of a desire to advance such facilitation exists. K.S.A. 60-426(b)(l) requires additional evidence before the crime-fraud exception to attorney-client privilege will arise, given the threat of serious damage to the essential confidential relationship the privilege ordinarily protects. The attorney-client privilege protecting the communications of the former client to McKinnon or her subordinate was and is intact in this case, absent waiver or a contractual agreement not to claim the privilege. See K.S.A. 60-437(a), (b) (privilege may be waived by contract, previous disclosure).
As noted, the State nevertheless argues that McKinnon cannot effectively invoke the privilege because the prosecution merely seeks the client’s name or identity, which is not confidential. Although this rule of law may generally be correct, see In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990) (client’s identity is not normally protected by the attorney-client privilege); Bank v. McDowell, 7 Kan. App. 568, Syl. ¶ 2, 52 Pac. 56 (1898) (client identity not protected by attorney-client privilege), it is not correct in the specific circumstances before us here. McKinnon admits that she had no authorization from the former client to include the substance of the former client’s statement in the motion to withdraw and that she did so in violation of the attorney ethics rules governing client confidentiality. See KRPC 1.6(a) (2009 Kan. Ct. R. Annot. 468) (attorney shall not reveal client confidences); State v. Maxwell, 10 Kan. App. 2d 62, 64, 691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985) (attorney’s unauthorized disclosure of client confidence not equivalent to client waiver).
In this unusual situation, when the content of the confidential communication has already been revealed without the former client’s permission, providing the name or identity of the former client would effectively disclose confidential client information; thus, in this case, the name or identity of the former client must be kept confidential to achieve the purpose of the privilege and the attorney ethics rules that provide its context. See United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003) (limited exception to the general rule that client identity is not privileged applies where “so much of an actual confidential communication has been disclosed already that merely identifying the client will effectively dis close that communication”); Vingelli v. United States, Drug Enforcement Agency, 992 F.2d 449, 453 (2d Cir. 1993) (“substantial disclosure” exception to general rule that client identity not privileged communication extends privilege to identity “where the substance of a confidential communication has already been revealed, but not its source, [such that] identifying the client constitutes a prejudicial disclosure of a confidential communication”).
Because the continuing existence of the attorney-client privilege malees it impossible for the State to meet its burden to establish all of the three KRPC 3.8(e) factors, the contempt judgment and sanctions order must be vacated and this case remanded for further proceedings. Further discussion of the KRPC 3.8(e) factors is technically unnecessary to the inevitable outcome of this appeal. We nevertheless continue our analysis because this opinion enunciates a new rule that may need to be applied on remand for whatever usefulness it may have as the district judge evaluates the evidence already in the record.
Second Factor Under KRPC 3.8(e)
McKinnon’s brief does not argue this factor — whether the evidence sought is essential to the successful completion of an ongoing investigation or prosecution. Her counsel also made no issue of it at oral argument before us. We thus assume there to be no argument between the parties on this point, as the evidence has been developed so far.
Third Factor Under KRPC 3.8(e)
McKinnon’s brief also does not argue the third factor under KRPC 3.8(e) — whether the prosecution has another feasible alternative to obtain the information it seeks from her. At oral argument, however, McKinnon’s counsel suggested that the State failed to establish this factor, because its investigator could have determined the former client’s identity by checking the court files of the seven newly endorsed witnesses to determine the one from whose case the Public Defender’s Office withdrew during the first half of 2007. Counsel for the State acknowledged at oral argument that such a review of the witnesses’ court files was possible and that he did not know whether it had occurred. The detective’s testimony, the only evidence in the record on the extent and results of the State’s investigation after McKinnon’s motion to withdraw, makes no mention of such an effort being undertaken.
As with the first factor under KRPC 3.8(e), the issue before us is factual rather than legal. Is there substantial competent evidence in the record as it exists to support the district judge’s determination on this factor? The answer is no.
Again, the only evidence as to the third factor was the testimony of Moore, the detective who conducted the fruitless interviews of the seven newly endorsed witnesses. Although Moore said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were attempted and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce McKinnon’s testimony. Even if the crime-fraud exception arose to defeat the attorney-client privilege under the first factor of KRPC 3.8(e), the third factor should have prevented issuance of the McKinnon subpoena in the first place or prevented its enforcement on her motion to quash.
The judgment of the district court is reversed and vacated, and the case is remanded to the district court for further proceedings.
Davis, C.J., not participating.
Larry T. Solomon, District Judge, assigned.
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The opinion of the court was delivered by
Nuss, J.:
This case arises out of the district court’s denial of Stanton Holt’s fourth motion for post-conviction relief under K.S.A. 60-1507. The court not only denied the motion without appointment of counsel and hearing but also barred Holt from filing “further K.S.A. 60-1507 or similar motions surrounding this case.” Holt appealed, challenging both the denial of the present motion and the blanket prohibition of future motions. We transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in dismissing Holt’s 60-1507 motion without conducting a hearing? No.
2. Did the district court exceed its power to limit the filing of future motions? Yes.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
Facts
In 1994, a jury convicted Stanton Holt of over 60 offenses, including two counts of first-degree murder, multiple counts of aggravated burglaiy, burglary, felony theft, misdemeanor theft, criminal damage to property, and other offenses. He received a controlling sentence of life plus life plus 123 to 355 years.
We affirmed Holt’s convictions on direct appeal in State v. Holt, 260 Kan. 33, 917 P.2d 1332 (1996). In essence, Holt committed a series of burglaries and related offenses in Junction City, Kansas, and killed two persons during those events. Following our opinion in Holt’s direct appeal, he employed different methods in search of relief. These methods include four pro se 60-1507 motions, a pro se motion to correct illegal sentences, a pro se motion for judgment of default, two habeas corpus motions filed in United States District Court pursuant to 28 U.S.C. § 2254, and a motion for reconsideration. All of his motions were denied or dismissed, except the Kansas Court of Appeals granted Holt’s motion to correct one of his sentences, a result that did not affect his controlling sentence. State v. Holt, 2007 WL 1309615 (Kan. App. 2007) (unpublished opinion).
Holt filed all four pro se 60-1507 motions in the Geary District Court. His first 1507 motion was a 78-page handwritten document alleging that several failures of his appointed trial counsel amounted to ineffective assistance. The district court set the cause for hearing, granted Holt’s appointed motion counsel additional time to prepare, and met with both parties. The State filed a motion to dismiss, Holt’s counsel did not object, and the court dismissed Holt’s motion. The Court of Appeals affirmed the dismissal, noting: “In the opinion of Holt’s lawyer and the district court, the 1507 petition failed to raise substantial issues of law or triable issues of fact. On appeal, Holt cites nothing in the record to support his petition.” Holt v. State, No. 81,489, unpublished opinion filed January 29, 1999.
Holt’s second 1507 motion was a 41-page handwritten document raising almost identical issues to his first motion, including ineffective assistance of counsel. Specifically, Holt claimed his trial coun sel was ineffective for failing to object to prosecutorial misconduct. Prior to the hearing, Holt’s appointed motion counsel sent a letter to the court requesting to withdraw for conflict reasons. Counsel expressed belief that Holt’s second 1507 motion did not state a cause of action and simply raised the same argument as his first motion. Holt appeared pro se at the hearing. The district court “note[d] that many of the issues raised by [Holt] were raised by direct appeal and decided adversely to [him]” and dismissed the motion. The Court of Appeals concurred that Holt’s second motion raised “a variation of issues Holt previously raised either [in] his direct appeal or in his initial 1507 motion” and affirmed the dismissal. Holt v. State, 2003 WL 22990148, at *3 (Kan. App. 2003) (unpublished opinion).
Holt’s third 1507 motion was an 18-page handwritten document raising similar issues to both prior motions, including ineffective assistance of counsel. The district court dismissed the motion as successive and an abuse of remedy, noting, “Holt has filed three 1507 motions which are nearly identical.” The Court of Appeals affirmed the dismissal, finding the third motion successive to the first two. Holt v. State, 2007 WL 1413131, at *4 (Kan. App. 2007) (unpublished opinion).
Holt’s fourth 1507 motion, which is presently before us for review, is a 15-page typewritten document. He makes broad claims of DNA inconsistencies, false presentation of evidence by the prosecution, trial judge bias, and improper jurors. Once again, he also claims ineffective assistance of counsel. The district court denied Holt’s request for appointed counsel and a hearing. Citing Holt’s prior appeals and motions, the court also found this motion successive because “all issues raised by Holt in the present motion have been decided at least five or six times considering the filings in Federal Court. Further, Holt has filed four 1507 motions which are nearly identical.” The court dismissed the motion and barred Holt from filing future motions in his case.
Holt responded to the ruling with a letter to the judge. The court characterized the letter as a motion for reconsideration, which it denied. Holt appealed.
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court did not err in dismissing Holt’s 1507 motion without a hearing.
Holt’s fourth 60-1507 motion raises many issues. On appeal, however, he only challenges the district court’s failure to hold a hearing on his ineffective assistance of counsel claim. Accordingly, we will only address that issue. See State v. Richmond, 289 Kan. 419, 437, 212 P.3d 165 (2009) (Issues not briefed are deemed waived or abandoned.).
Holt argues that because effectiveness of counsel cannot be determined without an evidentiary hearing, the court erred in its sum-maiy dismissal. He asks this court to grant a hearing so he can provide evidence of interactions with his attorneys, their conversations, courses of action, and other items that do not appear in the record and reflect on the level of assistance provided.
The State responds that Holt is not entitled to relief because his present motion is successive and identical to the first three 1507 motions.
A summaiy dismissal occurs when “the district court reviews the motion, records, and files of the case and reaches a decision without conducting a hearing.” Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). We examine summary dismissals of K.S.A. 60-1507 motions using a de novo standard of review. State v. Howard, 287 Kan. 686, 690-91, 198 P.3d 146 (2008). This standard requires “an appellate court to determine whether the motion, files, and records of the case conclusively show the movant is entitled to no relief.” Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
We have held that “ ‘[a] movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ [Citation omitted.]” Trotter, 288 Kan. at 131-32. If a movant satisfies that burden, the court is required to grant a hearing, unless the motion is “second” or “successive” and seeks similar relief. K.S.A. 60-1507(c) (court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner). Kansas Supreme Court Rule 183(d) (2009 Kan. Ct. R. Annot. 251) clarifies:
“The sentencing court shall not entertain a second or successive motion for relief on behalf of the same prisoner, where (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.”
For the only claim we review on Holt’s appeal, lack of hearing on his claim of ineffective assistance of counsel, he argues for the first time that his three prior 1507 motions were improperly dismissed without an evidentiary hearing. His right to argue the lack of prior evidentiary hearings, however, ended with his direct appeals on those particular motions. See, e.g., Richmond, 289 Kan. at 437 (issue not briefed is deemed waived or abandoned).
In reviewing Holt’s claim of entitlement to a hearing for his fourth motion alleging ineffective assistance of counsel, we are unable to ascertain any specific instances of conduct to determine whether his trial counsel’s representation fell below an objective standard of reasonableness. See State v. Gleason, 277 Kan. 624, 643-44, 88 P.3d 218 (2004) (reciting the two-prong standard from Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]). Holt only makes conclusoiy contentions without an evidentiary basis to support his claims. For instance, he claims his trial counsel was “dishonest, incompetent, inexperience[d] [and] inadequate,” but he does not explain how. As a result, he is not entitled to the hearing he demands. See Trotter, 288 Kan. at 131 (“movant must make more than conclusory contentions”).
In addition to ruling that Holt failed to establish the need for an evidentiary hearing, we hold that Holt’s present 1507 motion is successive. See K.S.A. 60-1507(c). His first three motions all alleged ineffective assistance of counsel, as does his present one.
Finally, we acknowledge that even successive motions can be considered under exceptional circumstances. See Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977); Rule 183(c)(3). “Exceptional circumstances are unusual events or intervening changes in the law that prevented the defendant from raising the issue in a preceding 60-1507 motion. [Citation omitted.]” State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 (2007). Under these facts, however, Holt has not demonstrated any such circumstances to justify consideration of his latest motion.
The district court properly dismissed Holt’s fourth 1507 motion.
Issue 2: The district court exceeded its power to limit the filing of future motions.
After dismissing Holt’s fourth 1507 motion, the district court ruled that Holt was barred from filing, and the clerk of the court was barred from accepting, such future motions in his criminal case:
“It is now to the point that these successive and frivolous motions for post judgment relief are taking valuable judicial resources, are cumulative, spurious and serve no purpose but to occupy the time of this prisoner. Thus, the court orders that this prisoner is barred from filing any further KS.A. 60-1507 or similar motions surrounding this case. The clerk of the court is directed to refrain from filing further motions from this prisoner in regard to the convictions in Geary County case number 93 CR 430. All due process to which this prisoner is entitled has been exhausted and there must come a time for the judicial system to be free from these types of successive motions.” (Emphasis added.)
Holt argues that the district court (1) exceeded its authority and violated his Fourteenth Amendment rights under the United States Constitution by barring prospective motions, and (2) lacked jurisdiction to order the clerk of the court not to file prospective motions. The State responds that the district court’s order was a proper exercise of the court’s inherent power to control the litigation.
Establishing the standard
Holt initially contends that courts do not possess the authority to impose any filing restrictions. We disagree. We have generally recognized that courts have the powers necessary for the administration of justice:
“[A] court has certain inherent powers it may exercise, those reasonably necessary for the administration of justice, provided these powers in no way contravene or are inconsistent with substantive statutory law. [Citations omitted.] Such powers may be exercised as a means of enforcing obedience to a law which the court is called on to administer.” Wilson v. American. Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117 (1981).
See also Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 429, 197 P.3d 370 (2008) (Davis, J„ concurring) (inherent powers must be exercised with restraint and discretion).
Included in a court’s inherent power is the ability to control its docket. Air Line Pilots v. Miller, 523 U.S. 866, 879 n.6, 140 L. Ed. 2d 1070, 118 S. Ct. 1761 (1998); Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962). As a means of controlling the docket, federal courts have recognized the inherent power of a court to impose reasonable filing restrictions to curb abusive filing practices. See, e.g., Cromer v. Kraft Foods North America, Inc., 390 F.3d 812 (4th Cir. 2004); In re Oliver, 682 F.2d 443 (3d Cir. 1982); In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984); In re Green, 669 F.2d 779 (D.C. Cir. 1981); Gordon v. United States Dept. of Justice, 558 F.2d 618 (1st Cir. 1977); see also Ford v. Pryor, 552 F.3d 1174, 1180 (10th Cir. 2008) (“ ‘Federal courts have the inherent power to regulate the activities of abusive litigants by imposing carefully tailored restrictions in appropriate circumstances.’ ”) (quoting Andrews v. Heaton, 483 F.3d 1070, 1077 [10th Cir. 2007]). Such limitations are consistent with the principle that “the right of access to the courts is neither absolute nor unconditional [citation omitted], and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious. [Citations omitted.]” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989).
The power to impose filing restrictions is not without limitations, however. See, e.g., Tripati, 878 F.2d at 352 (“conditions cannot be so burdensome, however, as to deny a litigant meaningful access to the courts”); Cromer, 390 F.3d at 819 (order preventing plaintiff from ever filing documents in a particular case was overbroad); Ortman v. Thomas, 99 F.3d 807, 810-11 (6th Cir. 1996) (absolute bar to further litigation is too broad); Matter of Davis, 878 F.2d 211, 212 (7th Cir. 1989) (absolute bars violate constitutional and statutory rights of access to the courts); Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986) (district courts have a variety of options but cannot completely foreclose a party from any access to the court).
The majority of appellate decisions on this issue involves reviews of filing restrictions imposed by district courts. But when a party engages in abusive practices in the appellate courts, even those courts have imposed their own restrictions, both on a party’s ability to appeal and to file original actions. For example, in In re Winslow, 17 F.3d 314 (10th Cir. 1994), the Winslows appealed from the district court’s affirmance of bankruptcy court orders allowing sale of certain realty and a stipulated settlement with two estate creditors. The Tenth Circuit determined that the Winslows’ complaints “are the same allegations which the Winslows have raised [on 17 occasions] over the last ten years.” 17 F.3d at 315. The court then imposed enumerated restrictions on future filings because of “the Winslows’ history of repetitive filings and abuse of the judicial process.” 17 F.3d at 314-15. In essence, the court prohibited the Win-slows from filing future pro se appeals or original actions unless they first obtained permission from the Circuit’s Chief Judge. The Chief Judge was to review all proposed filings and, if all the restrictions were met and the pleadings approved, the clerk would be directed to file the document(s). 17 F.3d at 315-17. The court also provided the Winslows with an opportunity to object to the proposed filing restrictions. 17 F.3d at 317. In another case concerning abusive filing practices with the Tenth Circuit, that court imposed both monetary sanctions and filing restrictions on future appeals that raised claims decided by appellant’s prior appeals or were related to the claims brought in those appeals. Ford v. Pryor, 552 F.3d 1174 (10th Cir. 2008).
The Kansas Court of Appeals opinion in State ex rel. Stovall v. Lynn, 26 Kan. App. 2d 79, 975 P.2d 813 (1999), is consistent with this federal jurisprudence. While Lynn’s direct appeal of his numerous criminal convictions was pending, he filed multiple civil causes of action in district court arising out of his convictions. The State filed a petition seeking reasonable filing restrictions. After a hearing, which Lynn attended via telephone from prison, the court granted a permanent injunction and placed conditions on filing. These included, among other things, filing with the court an application for leave to file a petition or pleading except for notices of appeal; providing a list of all lawsuits currently pending or pre viously filed involving the same claims or parties and their disposition; providing an affidavit certifying that the claims had not been previously asserted, that the claims were not frivolous or made in bad faith, and that they complied with all civil and appellate procedures and rules. Finally, the administrative judge would review the proposed pleadings and would allow them to be filed only if they were not lacking in merit, were not duplicative, and were not frivolous. 26 Kan. App. 2d at 81.
The Lynn panel noted that “ ‘[t]he goal of fairly dispensing justice ... is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous [claims].’ ” 26 Kan. App. 2d at 82 (quoting In re Sindram, 498 U.S. 177, 179-80, 112 L. Ed. 2d 599, 111 S. Ct. 596 [1991]). It also observed that litigiousness alone was insufficient reason to restrict access to the court, but that restrictions are appropriate where “a party has ‘engaged in a pattern of litigation activity which is manifestly abusive.’ ” 26 Kan. App. 2d at 82 (relying on Johnson v. Cowley, 872 F.2d 342, 344 [10th Cir. 1989]). The court cautioned that “restrictions on a person’s right to access to the courts must be carefully drawn and not be unnecessarily restrictive.” 26 Kan. App. 2d at 82. After concluding that the main purpose of the suits was to aid Lynn in his appeal, it also determined that he was using tire suits to attempt to harass various personnel involved in his case. It then affirmed these reasonable restrictions imposed on Lynn.
We generally agree with these authorities. Within the district court’s inherent power to manage litigation is the ability to curb abusive filing practices that place a strain on the judicial system. Consistent with this inherent power, we additionally note that K.S.A. 60-211 authorizes courts to impose sanctions for pleadings, motions, and other papers that are presented for improper purposes and that are not warranted by existing law (unless making a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law). We further observe that when monetary sanctions are imposed under the statute against an inmate such as Holt, the Secretary of Corrections is authorized to disburse the money from the inmate’s account. K.S.A. 60-211(f). The existence of a sanctioning statute or rule does not exclude invocation of the court’s inherent power. See Chambers v. NASCO, Inc., 501 U.S. 32, 49-50, 115 L. Ed. 2d 27, 111 S. Ct. 2123 (1991).
We also agree that when imposing filing restrictions, the restrictions shall be reasonable: for example, with enumerated prefiling conditions. See, e.g., In re Winslow, 17 F.3d 314; Lynn, 26 Kan. App. 2d 79. Blanket prohibitions, however, would deny a party’s future access to the courts and constitute an overextension of the inherent authority. Blanket restrictions would also be contrary to certain Kansas statutory authority. For example, while motions under K.S.A. 60-1507 can be denied because they are successive, K.S.A. 21-2512 expressly permits a person in State custody to petition the court that entered judgment for forensic DNA testing “at any time after conviction for murder.” See, e.g., State v. Denney, 278 Kan. 643, 644-45, 101 P.3d 1257 (2004) (court addressed DNA testing motion filed 9 years after conviction). Similarly, K.S.A. 22-3504 explicitly allows an illegal sentence to be corrected “at any time.” State v. Ballard, 289 Kan. 1000, Syl. ¶ 10, 218 P.3d 432 (2009).
We further agree that before the court-imposed filing restrictions become effective, the party subject to them is entitled to notice and an opportunity to be heard in opposition. See, e.g., Tripati, 878 F.2d at 354 (requiring the same and citing other jurisdictions imposing this requirement); Lynn, 26 Kan. App. 2d 79; Ford v. Pryor, 552 F.3d 1174 (10th Cir. 2008); Cromer, 390 F.3d at 819.
But the objecting party is not required to be physically present. See, e.g., Tripati, 878 F.2d at 354 (“The notice and opportunity requirement does not, however, require an in-person hearing in the district court. Mr. Tripati is perfectly capable of reducing his objections to writing.”); Lynn, 26 Kan. App. 2d 79 (inmate tele-phonically participated in hearing on proposed filing restrictions from prison); cf. In re Winslow, 17 F.3d at 316 (‘Winslows shall have ten days from the date of this order to file written objections to these proposed sanctions.”).
We now turn to Holt’s next argument: that the court wholly lacked jurisdiction to order the clerk of the court not to file his prospective motions for any reason. We disagree. Chapter 20 of the Kansas Statutes Annotated governs “courts,” and 20-3102 provides that “[t]he clerks of the district courts shall do and perform all duties that may be required of them by law or the rules and practice of the courts.” (Emphasis added.) Chapter 60 governs civil procedure, including 60-1507 motions, and 60-2601(a) provides: “General powers and duties. In the performance of their duties all clerks of record shall be under the direction of the court.”
In light of these statutes, we conclude that the district court has jurisdiction over the clerks and the authority to direct them to refrain from filing various items under appropriate circumstances. Cf. Lynn, 26 Kan. App. 2d 79 (Court of Appeals affirmed injunction enjoining inmate from filing actions absent his compliance with reasonable restrictions).
Application of standard to instant case
Having established that the district court possessed the power to impose reasonable filing restrictions, we turn to that court’s order in this case. We have not previously articulated a standard of review for this particular issue. The Court of Appeals in Lynn applied an abuse of discretion standard. 26 Kan. App. 2d at 82. However, it was reviewing a district court decision permanently enjoining the filing of future lawsuits. See Steffes v. City of Lawrence, 284 Kan. 380, 393, 160 P.3d 843 (2007) (granting of injunctive relief reviewed for abuse of discretion).
We recently noted, however, that a district court has substantial discretion in controlling the proceedings before it. Harsch v. Miller, 288 Kan. 280, 288, 200 P.3d 467 (2009). We therefore readily conclude that, like the federal courts, we should review district court decisions on docket management for abuse of discretion. See e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 630-33, 8 L. Ed. 2d 734, 82.S. Ct. 1386 (1962); Chambers, 501 U.S. at 55 (reviewing a court’s imposition of sanctions under its inherent power for abuse of discretion); Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 187 (5th Cir. 2008); United States v. Nicholson, 983 F.2d 983, 988 (10th Cir. 1993); Tripati, 878 F.2d at 354; Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008).
The district court in the instant case issued an outright ban on “further K.S.A. 60-1507 or similar motions surrounding this case.” This ban, unlike those imposed by the courts in Lynn, Tripati, Winslow, and other opinions, does not contain any conditions that would allow Holt to file future motions in his case. As noted, an outright ban is an impermissible restriction on a litigant’s access to the courts. While Holt’s past and current motions admittedly continue to advance the same arguments, the district court’s order cuts off possible meritorious claims in the future.
Further, the order does not define “similar motions.” Nor does it allow Holt any opportunity to seek permission from the district court before filing future motions. In effect, the order also prevents Holt from fifing a motion for DNA testing or a motion to correct an illegal sentence in his criminal case, contrary to statutory direction permitting their fifing at any time. See, e.g., K.S.A. 21-2512 (motion for DNA testing after conviction of certain crimes); Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (60-1507 motions can include requests for DNA testing); State v. Mitchell, 284 Kan. 374, 378-79, 162 P.3d 18 (2007) (noting the similarity of a motion to correct an illegal sentence and a 60-1507 motion); K.S.A. 22-3504 (motion to correct illegal sentence).
We recognize the district court’s desire to curb Holt’s successive filings. It exceeded its authority, however, by banning outright his future 60-1507 motions and similar avenues of relief. Its order denies Holt meaningful access to the courts. In short, the court abused its discretion. See State v. Skolaut, 286 Kan. 219, Syl. ¶ 3, 182 P.3d 1231 (2008) (abuse of discretion standard includes a review to determine that the discretion was not guided by erroneous legal conclusions). This problem can be corrected on remand both by enumerating reasonable conditions that inmate Holt must meet to allow his future filings and by giving him notice and an opportunity to be heard before the restrictive conditions are to become effective. See, e.g., Lynn, 26 Kan. App. 2d at 81; Tripati, 878 F.2d at 354.
The district court’s order is affirmed in part, reversed in part, and remanded for further proceedings.
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The opinion of the court was delivered by
Rosen, J.:
Dorian Richardson appeals from his convictions of felony fleeing or attempting to elude a police officer, misdemeanor reckless driving, and misdemeanor driving with a suspended license.
Early in the morning of July 25, 2005, a Kansas City, Kansas, police officer, who was in uniform and was driving a marked police car, observed a Buick vehicle make a turn without an activated turn signal. He drove closer to the Buick from behind and turned on his siren and lights, at which time the driver of the Buick turned off its lights and sped away. The officer then notified the dispatcher and continued to pursue the Buick. In the course of the pursuit, the officer observed and videotaped the Buick run through five stop signs and a red fight, turn without a turn signal five times, drive in the wrong lane twice, and drive as much as 40 miles per hour over the speed limit. While the first police officer pursued the Buick, other officers deployed stop sticks that punctured the Buick’s tires. The Buick eventually came to a stop at an abandoned service station, and the driver fled on foot.
Police officers chased the fleeing suspect but lost sight of him when he ran around a comer. Shortly afterwards, they found Richardson hiding under some bushes close to where they had last seen the fleeing man, a couple of blocks from where the car had been abandoned. One officer identified Richardson as the driver of the Buick, having seen him behind the wheel illuminated by a pursuing patrol car’s spotlight and by streetlights, and another officer identified Richardson as the man whom she saw running and falling directly in front of her car while he was fleeing the scene. Richardson was the registered owner of the Buick. His driver’s license was suspended at the time of his arrest.
On July 25, 2005, the State of Kansas filed an information charging Richardson with one count of felony eluding a police officer, K.S.A. 8-1568, one count of misdemeanor reckless driving, K.S.A. 8-1566, and one count of misdemeanor driving while suspended, K.S.A. 8-262. The case was tried to a jury beginning on June 7, 2006, and on June 8, 2006, the jury announced it was unable to reach a verdict. The court declared a mistrial and set the case for a new trial.
At the second trial, the jury watched a video of the vehicle pursuit recorded from the patrol car that initially signaled the Buick to stop. Richardson elected not to testify at the trial. He did not contest that the chase took place as the State contended, instead arguing a theory that he was not the driver of the Buick. The jury found him guilty of all three counts. The court sentenced him to a term of 15 months’ imprisonment for fleeing or attempting to elude a police officer; a consecutive term of 6 months in jail and a $100 fine, paroled, for the second count; and a $100 fine, paroled, for the third offense. Richardson took a timely appeal.
The Kansas Court of Appeals affirmed Richardson’s convictions and sentences but remanded the case to the district court for reconsideration and appropriate findings regarding reimbursement of attorney fees after taking into account Richardson’s ability to pay in compliance with K.S.A. 22-4513 in State v. Richardson, 40 Kan. App. 2d 602, 194 P.3d 599 (2008). This court granted Richardson’s petition for review on all issues.
I. Did the district court err by failing to instruct the
JURY ON THE SPECIFIC MOVING VIOLATIONS THAT CONSTITUTED AN ESSENTIAL ELEMENT OF FLEEING OR ATTEMPTING TO ELUDE A POLICE OFFICER?
The State charged Richardson with felony fleeing or attempting to elude a police officer based in part on an allegation that he committed five or more moving violations. Richardson contends on appeal that the trial court had a duty to instruct the juiy on the specific charges that supported each moving violation and that the failure to give such an instruction was clearly erroneous.
An appellate court reviewing a district court’s failure to give a particular instruction applies a clearly erroneous standard where a party neither requested an instruction nor objected to its omission. See K.S.A. 22-3414(3); State v. Sappington, 285 Kan. 158, 163, 169 P.3d 1096 (2007). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Jury Instruction No. 7 reads as follows:
“The defendant is charged in Count I with the crime of fleeing or attempting to elude a police officer. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant was driving a motor vehicle; and
“2. That the defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop; and
“3. That die defendant intentionally failed or refused to bring die motor vehicle to a stop, or otherwise fled or attempted to elude a pursuing police vehicle; and
“4. That die police officer giving such a signal was in uniform, prominendy displaying such officer s badge of office; and
“5. That die police officer’s vehicle was appropriately marked showing it to be an official police vehicle;
“6. That the defendant committed five or more moving violations;
“7. That this act occurred on or about the 25tii day of July, 2005, in Wyandotte County, Kansas.”
This instruction closely tracks PIK Crim. 3d 70.09. The instructions offered no explanation or definition of what constituted the moving violations, and PIK Crim. 3d 70.09 does not discuss whether an explanation or definitions of the applicable violations should be provided. Richardson did not object to the instruction. The issue before this court is whether the instruction sufficed to allow the jury to convict Richardson of felony fleeing or attempting to elude a police officer.
K.S.A. 8-1568 reads in relevant part:
“(a) Any driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1), (2) or (3). The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying such officer’s badge of office, and the officer’s vehicle or bicycle shall be appropriately marked showing it to be an official police vehicle or police bicycle.
“(b) Any driver who violates the provisions of subsection (a) and who: (1) Commits any of the following during a police pursuit: (A) Fails to stop for a police road block; (B) drives around tire deflating devices placed by a police officer; (C) engages in reckless driving as defined by K.S.A. 8-1566 and amendments thereto; (D) is involved in any motor vehicle accident or intentionally causes damage to property; or (E) commits five or more moving violations; or
(2) is attempting to elude capture for the commission of any felony, shall be guilty as provided in subsection (c)(4).”
A first-time violation of subsection (a) is a class B nonperson misdemeanor; subsection (c)(4) makes a conviction under subsec tion (b) a severity level 9 person felony. See K.S.A. 8-1568(c)(l); K.S.A. 8-1568(c)(4).
This statute does not define what constitutes a moving violation and does not refer to any other statutory definition of moving violations. Other Kansas statutes and regulations, however, do refer to moving violations. Those provisions demonstrate that the definition of a moving violation is not intuitive.
K.S.A. 8-249(b), relating to records to be maintained by the Kansas Department of Revenue, Division of Motor Vehicles, requires tire division to maintain records of individual licensees’ “convictions of moving violations as defined by rules and regulations adopted by the secretary of revenue.”
Certain statutes explicitly refer to the' rules and regulations adopted pursuant to K.S.A. 8-249. See K.S.A. 8-2004(c), relating to traffic-control devices on state highways; K.S.A. 8-2118(e), relating to a uniform fine schedule for traffic infractions; and K.S.A. 28-172a(b), relating to docket fees.
Other statutes, including the subject of the present appeal, K.S.A. 8-1568, refer to moving traffic violations without reference to other rules and regulations. See K.S.A. 8-237(a), relating to restricted licenses; K.S.A. 8-255(a), relating to restricting or removing driving privileges; K.S.A. 8-296(g), relating to farm permits; and K.S.A. 40-277(c)(7), relating to automobile liability insurance policies.
Certain traffic violations are excluded by statute from application to other statutoiy provisions relating to moving violations. K.S.A. 8-1345(a) specifically excludes certain violations relating to child-passenger safety from being considered moving traffic violations as they relate to K.S.A. 8-255(a). K.S.A. 8-1560c, relating to violating maximum speed limits, likewise specifically limits certain speeding violations from being treated as moving traffic violations for purposes of K.S.A. 40-277(c). And K.S.A. 8-1742b excludes violations relating to restrictions on wide-base single tires from the definition of moving traffic violations under K.S.A. 8-255(a).
The administrative regulations are also not in agreement as to what constitutes a moving violation. K.A.R. 82-4-l(t), relating to the Kansas Corporation Commission, defines a moving violation with respect to motor carriers as “the commission or omission of an act by a person operating a motor vehicle that could result in injury or property damage and that is also a violation of a statute, ordinance, or regulation of this or any other state.” That definition is more open-ended than the definition of moving violation contained in K.A.R. 92-52-9, promulgated by the Kansas Department of Revenue, Motor Vehicle Drivers’ Licenses Division pursuant to K.S.A. 8-249, which enumerates multiple Kansas statutory offenses, including violations of corresponding municipal ordinances or county resolutions in this state or similar statutes, ordinances, or regulations in other states, that constitute moving violations.
K.S.A. 8-1568, the statute at issue in the present case, does not refer explicitly to K.A.R. 92-52-9. The question of what constitutes a moving violation for purposes of felony fleeing or attempting to elude a police officer is not before this court in the present appeal, and we need not resolve it at this time. We simply note that the statutes and regulations present a complex statement of what is considered a moving violation for particular purposes.
Jurors may rely on their common knowledge and experience in evaluating testimony. See PIK Crim. 3d 52.09; State v. Mack, 228 Kan. 83, 89, 612 P.2d 158 (1980), disapproved on other grounds State v. Warren, 230 Kan. 385, 396-97, 635 P.2d 1236 (1981). If the meaning of moving violation were subject to common popular knowledge and understanding, there would be no need for administrative regulations defining the phrase and no need for statutes specifically including or excluding certain infractions from its definition. The definition of moving violation is not a simple matter of common knowledge among jurors.
The Court of Appeals found, see 40 Kan. App. 2d at 608-10, and the State has conceded, that the failure to instruct the jury on the specific underlying moving violations and their elements was erroneous. This is the correct conclusion. A trial court has the duty to define the offense charged in the jury instructions, either in the language of the statute or in appropriate and accurate language of the court. See State v. Crawford, 247 Kan. 223, 225, 795 P.2d 401 (1990). The trial court has the duty to inform the jury of every essential element of the crime that is charged. 247 Kan. at 227.
When a statute makes the commission of a crime or the intent to commit a crime an element of another crime, the juiy instructions must set out the statutory elements of the underlying offense. See State v. Rush, 255 Kan. 672, 679, 877 P.2d 386 (1994) (burglary instructions must specify and give elements of predicate crime, even if trial evidence only supported possibility of one particular predicate crime); State v. Linn, 251 Kan. 797, 801-02, 840 P.2d 1133 (1992) superseded by statute on other grounds State v. Hedges, 269 Kan. 895, 8 P.3d 1259 (2000) (aggravated burglary instruction must set out elements of offense intended by accused in making unauthorized entry); State v. Walker, 21 Kan. App. 2d 950, 954, 910 P.2d 868 (1996) (court must instruct accurately on elements of attempt and arson that underlie attempted aggravated arson).
It does not matter whether the predicate crime is considered a separate element of the principal crime or merely enhances the sentencing penalty. We have held in light of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), that merely because the legislature places a sentence enhancing factor within the sentencing provisions of the criminal code does not mean that the factor is not an essential element of the offense. State v. Gonzales, 289 Kan. 351, 371, 212 P.3d 215 (2009) (quoting State v. Bello, 289 Kan. 191, 199, 211 P.3d 139 [2009]).
Because Richardson did not object to the erroneous instruction, the reviewing court must determine whether it is convinced of a real possibility that the jury could have rendered a different verdict had the trial error not occurred. The Court of Appeals elected to review the record to determine whether there was evidence supporting a determination that the defendant committed five moving violations as defined by K.A.R. 92-52-9. The court found that the record contained ample evidence supporting that finding. 40 Kan. App. 2d at 609-11.
This court has made the omission of an element of a crime subject to harmless error analysis where the reviewing court examines the record to determine whether the omitted element was uncontested and supported by such overwhelming evidence that the jury verdict would have been the same without the omission. State v. Daniels, 278 Kan. 53, 62, 91 P.3d 1147 cert. denied 543 U.S. 982 (2004) (citing Neder v. United States, 527 U.S. 1, 4, 144 L. Ed. 2d 35, 119 S. Ct. 1827 [1999], holding that the harmless error analysis of Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 [1967], applies to a jury instruction that omits an element of an offense.) Under this standard, a reviewing court “asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Neder, 527 U.S. at 19. Although an appellate court may review the record in a criminal prosecution and determine whether the evidence supports a jury’s specific factual findings, harmless error analysis does not allow the court to speculate with legal finality which of a wide range of conduct, some legal and some illegal, a jury elected to consider moving violations.
This court cannot know whether the jury found that Richardson committed at least five moving violations, since they were not identified or defined to the juiy, and we do not know which specific acts the jury deemed to be moving violations. It may be that the jury included speeding violations that are excluded from the list of moving violations compiled by the Kansas Department of Revenue. It may also be that the juiy included acts that are not even statutory infractions, such as being in an intersection when a traffic light is yellow.
We will not step into the shoes of the jurors and convict Richardson of five moving violations of our choice — the juiy did not malee the necessaiy determination of guilt beyond a reasonable doubt on all the elements of the crime charged. The failure to provide the jury with instructions specifying and defining at least five underlying moving violations as elements of the fleeing or attempting to elude crime charged against Richardson constitutes clear error, and we reverse the conviction of felony fleeing or attempting to elude a police officer.
Richardson raises additional issues relating to the jury instructions and the underlying moving violations. He contends that the district court should have instructed the jury that the same offenses could not be used to support a guilty verdict for reckless driving and driving while suspended and felony fleeing or attempting to elude a police officer. He also contends the district court was required to instruct the jury on the alleged moving violations as lesser included offenses of fleeing or attempting to elude. He finally argues that the convictions of reckless driving and driving while suspended were multiplicitous to the conviction of felony fleeing or attempting to elude. These issues are moot in light of our determination that it was clear error to fail to instruct on the specific moving violations, but they further illustrate the problems that arise from a failure to make specific instructions. Neither the district court nor this court on review can ascertain on which moving violations the jury based its felony conviction, and it is unknowable whether the jury used the same offenses for multiple convictions.
II. Did the district court commit reversible error when it denied Richardson’s request for new counsel?
On August 21, 2006, the district court conducted a hearing on pretrial motions. During the hearing, Richardson addressed the court and asserted that his appointed counsel had a conflict of interest and had spoken with other parties about matters relating to his defense. He also asserted that his previous appointed counsel had communicated confidential information to his new counsel. He contends on appeal that he had a valid reason for seeking appointment of new counsel and the district court committed reversible error when it denied his request for new counsel.
The decision whether to appoint new counsel is subject to review under an abuse of discretion standard. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). Judicial discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable. The test for abuse of discretion is whether any reasonable person would take the view adopted by the district court. 280 Kan. at 894.
“To warrant the appointment of new trial counsel, a defendant must show ‘justifiable dissatisfaction’ with his or her appointed counsel. ‘Justifiable dissatisfaction’ may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney. [Citation omitted.]” 280 Kan. at 894.
The district court engaged in an extended dialogue with Richardson, his attorney, and the attorney for the State and inquired at length about the nature of the asserted conflicts and the basis for Richardson’s dissatisfaction with his attorney. Richardson’s objections to his counsel were vague and had more to do with Richardson’s unhappiness with being prosecuted than with the details of counsel’s performance. Richardson said that he did not trust his attorney, fhat his attorney may not have spent enough time preparing for the trial, and that his attorney had spoken with a potential alibi witness.
The court noted that Richardson was being represented by his fourth attorney at the time, that the attorney was a respected lawyer with decades of trial experience, and the attorney had read the complete transcript of the first trial and had attempted to contact an alibi witness. The court allowed an extended recess for Richardson to speak with his attorney privately. The court allowed Richardson to attempt to contact his alibi witness. The court also allowed recesses for Richardson and his attorney to speak with the prosecutor regarding a possible plea. The State offered to reduce the charge to attempted fleeing or eluding a police officer — a severity level 10 felony — and to reduce the requested sentence to time served. Richardson rejected that offer.
The court found that Richardson’s attorney had committed no breach of the attorney-client privilege and that contacts with other parties had been made solely for the purpose of preparing the best available defense. The court elected to deny Richardson’s request for new counsel.
Nothing in the record demonstrates a compelling communications problem or an irreconcilable conflict of such magnitude between Richardson and his attorney that this court would find that justifiable dissatisfaction necessarily existed. The district court did not abuse its discretion by refusing to appoint new counsel.
III. Did the sentencing court violate K.S.A. 22-4513 when IT FAILED TO CONSIDER ON THE RECORD RICHARDSON’S ABILITY TO PAY ATTORNEY FEES AND THE FINANCIAL BURDEN THOSE FEES WOULD IMPOSE ON HIM?
The trial court ordered Richardson to pay the Roard of Indigents’ Defense Services (BIDS) attorney fees in the amount of $500 as partial reimbursement for the cost of providing a court-appointed attorney. The court made no findings on the record regarding Richardson’s financial resources, his ability to pay the fees, and the burden that the reimbursement would impose on him. The State concedes that this was reversible error, and the Court of Appeals, 40 Kan. App. 2d at 619, remanded the case for a determination of Richardson’s financial circumstances and compliance with K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2008).
This is the correct result. K.S.A. 22-4513(a) requires that all expenditures made by the BIDS to provide counsel and other defense services to a convicted defendant are to be taxed against the defendant. The statute further requires that “[i]n determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” (Emphasis added.) K.S.A. 22-4513(b); Robinson, 281 Kan. at 546-47; see also State v. Davis 283 Kan. 569, 585-86, 158 P.3d 317 (2007) (reversing trial court on issue of BIDS attorney fees because it made “no explicit, on-the-record finding at the original assessment of BIDS fees against Davis regarding his ability to pay the fees or the financial burden the fees would impose”). Failure to consider those factors on the record require that the order for reimbursement of BIDS attorney fees be vacated and the case be remanded for compliance with K.S.A. 22-4513. See State v. Scaife, 286 Kan. 614, Syl. ¶ 6, 186 P.3d 755 (2008).
Because we reverse the conviction of felony fleeing or attempting to elude a police officer, Richardson’s additional issue relating to Apprendi and his sentence to the high-end of the sentencing guidelines grid box is moot. But see State v. Johnson, 286 Kan. 824, Syl. ¶¶ 5-6, 190 P.3d 207 (2008).
Conclusion
The decisions of tire Court of Appeals and the district court are affirmed in part and reversed in part. The convictions of reckless driving and driving while suspended are affirmed. The conviction of felony fleeing or attempting to elude a police officer is reversed, and the case is remanded to the district court for a new trial on that charge. The imposition of BIDS attorney fees is reversed, vacated, and remanded with directions for reconsideration and appropriate findings after taking into account the statutory factors.
Affirmed in part, reversed in part, and remanded with directions to the district court.
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The opinion of the court was delivered by
Nuss, J.:
This case concerns a refusal to award attorney fees. The Kansas Department of Revenue (KDR) was the prevailing party in a Civil Service Board (Board) action initiated by Jill Powell under the Kansas Whistleblower Act, K.S.A. 2005 Supp. 75-2973. The Board’s order denying KDR attorney fees was affirmed by the district court and the Kansas Court of Appeals. We granted KDR’s petition for review; jurisdiction is under K.S.A. 20-3018(b).
The basic issue on appeal is whether the Board abused its discretion in denying the KDR fees motion under K.S.A. 2005 Supp. 75-2973(f). We conclude that it did. Consequently, we reverse the Court of Appeals decision affirming the district court and the Board. We further remand to the Board so it may properly exercise its discretion per the direction contained in this opinion.
Facts
The facts are uncontested. Powell brought this matter before the Board, claiming that her suspension and ultimate dismissal from employment at KDR were unreasonable. She included a whistleblower claim under K.S.A. 2005 Supp. 75-2973, alleging that the KDR discipline was retaliatory.
During the third day of the Board hearing, Powell walked out. The Board then issued a default order against her for failure to participate.
KDR later filed a motion for “prevailing party” attorney fees under K.S.A. 2005 Supp. 75-2973(f). It argued fee entitlement because Powell presented no evidence that KDR had disciplined her for whistleblowing and because her Board appeal caused KDR’s legal staff to invest a lot of time in its defense.
The Board denied KDR’s motion for fees. In the Board’s order, it addressed the two KDR entitlement arguments and independently provided a third reason for its denial:
“[1] While it is true that both parties made a considerable investment of time and money to present their case leading up to and including the 2Vz days of hearing that were conducted, that alone is not a sufficient reason to award costs and fees. [2] While it is also true that the appellant did not produce any direct evidence of any disciplinary action taken against her in retaliation for her whistleblower activity, that is also not a sufficient reason to award costs and fees. [3] Permanent employees in the classified service must be free to file an appeal with the Civil Service Board when they believe improper disciplinaiy action has been taken against them. Whether the claims will be proven at a hearing depends upon the facts of tire case and can’t be determined until all of the evidence is presented. To assess costs and fees, while permissible under the statute, would have a chilling effect on such appeals.”
KDR appealed the denial order to the district court under K.S.A. 77-601 et seq. The court noted that “[i]f an employer was permitted to recover attorney’s fees against [an] employee in an administrative appeal, the ‘chilling effect’ feared by the Respondent could very well materialize.” The court also observed that the plain language of K.S.A. 75-2973(f) did not require die Board to award the prevailing party fees but made any award discretionary. It further noted the Board’s “established histoiy of not awarding attorney’s fees to employers in similar situations.” The court ultimately determined that the Board did not act unreasonably in refusing fees to KDR and affirmed.
KDR again appealed and again the Board was affirmed. In the Court of Appeals decision, the panel also addressed the chilling effect factor and the Board’s discretion in awarding fees:
“While the plain language of the statute precludes the Civil Service Board from automatically excluding employers, it does not preclude the Civil Seivice Board from exercising its discretion by leaning in favor of denying employers’ attorney fees on close calls. The potential chilling effect that could be caused by allowing attorney fees against employees in whistle-blower appeals is a legitimate concern for the Civil Service Board the only agency given the responsibility of enforcing the whistle-blower law. If tire legislature wanted to require the Civil Service Board to consider attorney fees in every case or in some way that is not as a matter of the Civil Service Board’s discretion, the legislature could have dictated such.” (Emphasis added.) Kansas Dept. of Revenue v. Powell, 40 Kan. App. 2d 967, 970, 197 P.3d 872 (2008).
We granted KDR’s petition for review.
Analysis
Standard of review
We begin by examining the costs and fees statute and our standards of review. The statute currently provides: “The board may award the prevailing party all or a portion of the costs of the proceedings before the board, including reasonable attorney fees and witness fees.” K.S.A. 2005 Supp. 75-2973(f). As KDR correctly points out, this language dates from 1998. Refore then, the applicable statute limited the awarding of costs and fees to officers and employees, i.e., no employer was eligible: “A court may also award such officer or employee all or a portion of the costs of litigation, including reasonable attorney fees and witness fees.” K.S.A. 75-2973(g).
As for our standard of review, we acknowledge that Board actions are renewable under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), which also narrows and defines the proper scope of review. See K.S.A. 75-2929h; K.S.A. 77-601 etseq.; Graham v. Dokter Trucking Group, 284 Kan. 547, 553, 161 P.3d 695 (2007); Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005). We exercise the same statutorily limited review of the Board’s action as does the district court, “ ‘as though the appeal had been made directly to this court.’ ” Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 628, 154 P.3d 1080 (2007) (quoting Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 245, 75 P.3d 226 [2003]). KDR, as the party asserting that the agency’s action is invalid, bears the burden of proving the invalidity. K.S.A. 77-621(a)(l); Praeger, 276 Kan. at 245. Finally, to the extent any statutory interpretation is required, our review is unlimited, with deference no longer being given to the agency’s interpretation. See, e.g., Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, Syl. ¶ 2, 228 P.3d 403 (2010).
K.S.A. 77-621(c) provides eight categories for which this court may grant relief. KDR relies upon five of them:
1. Subsection (c)(3): The Board failed to decide an issue requiring resolution;
2. Subsection (c)(4): The Board abused its discretion by erroneously interpreting or applying K.S.A. 2005 Supp. 75-2973(f);
3. Subsection (c)(5): The Board engaged in an unlawful procedure or failed to follow prescribed procedure;
4. Subsection (c)(7): The Board based its order on a determination of fact not supported by evidence in the record; and
5. Subsection (c)(8): The Board acted in an otherwise unreasonable, arbitrary, or capricious manner.
Discussion
The focal point of this case concerns the third reason articulated by the Board for denial of costs and fees:
“Permanent employees in the classified service must be free to file an appeal with tire Civil Service Board when they believe improper disciplinary action has been taken against them. Whether the claims will be proven at a hearing depends upon the facts of die case and can’t be determined until all of the evidence is presented. To assess costs and fees, while permissible under the statute, would have a chilling effect on such appeals.” (Emphasis added.)
Among its many arguments, KDR argues that this part of the Board’s order is based on a determination of fact not supported by evidence in the record. See K.S.A. 77-621(c)(7). We agree. We find no evidence in the record, e.g., testimony by Powell, supporting a concern about “a chilling effect” in her case.
KDR also includes among its many arguments the contention that the Board abused its discretion by erroneously applying K.S.A. 75-2973(f) when it essentially issued a global ruling. KDR suggests that the Board’s order denied not only KDR’s motion in the instant case but also all future employers’ requests for fees and costs because assessment “would have a chilling effect on such appeals” by employees. (Emphasis added.) See K.S.A. 77-621(c)(4). As more fully discussed below, we also agree.
We acknowledge KDR’s contention that such deficiencies in the Board’s order have historically also been covered by subsection (c)(8) of K.S.A. 77-621: acting in an “otherwise unreasonable, arbitrary or capricious” manner. For we have held:
“[T]he arbitraiy and capricious test relates to whether that particular action should have been taken or is justified, such as [1] the reasonableness of the [agency’s] exercise of discretion in reaching the determination, or [2] whether the agency’s action was without foundation in fact.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989).
In support of our agreement with KDR that the Board abused its discretion, we first observe that a tribunal’s failure to consider particular required factors in a case is such an abuse. Our opinion in Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 89 P.3d 908 (2004), is of guidance. There, we considered whether a trial court abused its discretion when it granted plaintiff s motion for class certification without consideration of factual issues placed in dispute by the defendant. We held that the trial court abused its discretion because it failed to fully determine factual issues and rigorously analyze the requirements for class certification. Of particular relevance to the instant case, we stated that “ ‘[a]buse is found when the trial court has gone outside the framework of legal standards or statutory limitations, or when it fails to properly consider the factors on that issue given by the higher courts to guide. the discretionary determination.’ ” (Emphasis added.) Dragon, 277 Kan. at 789 (quoting Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. Prac. & Process 47, 59 [2000]). Here, the Board did not simply fail to consider facts in the record. Rather, there were no facts in the record upon which it based an important part of its ruling: that assessing costs and fees against Powell would have a chilling effect.
In further support of our conclusion that the Board abused its discretion, we also observe that a tribunal’s issuance of a blanket ruling, both for resolving a current case and effectively all those in the future, is such an abuse. In State v. Fisher, 249 Kan. 649, 822 P.2d 602 (1991), we held the trial court abused its discretion by following its blanket rule to deny the defendant probation. Despite defendant’s individual circumstances, the trial court dismissively stated that “[t]his court does not grant [probation] on convictions of cocaine, first offense or any other.” 249 Kan. at 652. We inter preted the statement to mean that conviction of a cocaine offense meant an automatic imprisonment, regardless of any other factors present. We found an abuse of discretion because, contrary to policy, “the district court did not use discretion in denying the requested probation, as probation could never be considered as an option to imprisonment.” (Emphasis added.) 249 Kan. at 652; cf. State v. Brinklow, 288 Kan. 39, 42, 200 P.3d 1225 (2009) (A court’s complete failure to exercise its discretionary authority is an abuse of discretion.). Recently, in Holt v. State, 290 Kan. 491, 503, 232 P.3d 848 (2010), we held the trial court abused its discretion by issuing a blanket prohibition on all of defendant’s future motions under K.S.A. 60-1507 and similar avenues of relief in his criminal case. These cases demonstrate that a tribunal abuses its discretion by applying a blanket rule without consideration of other factors in an individual case.
We also agree with KDR that the Board’s issuance of an apparent blanket rule against awarding attorney fees to prevailing employers, in this case and those in the future, is contrary to the language of K.S.A. 2005 Supp. 75-2973(1): “The board may award the prevailing party all or a portion of the costs. . . .” Although the statute establishes the legislature’s policy of parity by empowering the Board to award fees to any prevailing party, whether employee or employer, the Board effectively restricted that policy with its blanket ruling. This restriction usurps the legislative authority. See State, ex rel., Londerholm v. Columbia Pictures Corp., 197 Kan. 448, 455, 417 P.2d 255 (1966) (“[t]he authority to declare the public policy of this state is vested in the legislature, not an administrative board”).
Stated another way, the Board’s blanket ruling of automatic exclusion improperly renders meaningless the 1998 statutory amendment that expanded fee award recipients to include employers. We presume that the legislature does not intend to enact meaningless legislation. See State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006) (citing State v. Van Hoet, 277 Kan. 815, 826, 89 P.3d 606 [2004]) (‘When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it existed prior to the amendment, and it is presumed that the leg islature does not intend to enact useless or meaningless legislation.”)-
We reverse the Court of Appeals decision affirming the district court and the Board, and we remand to the Board for it to properly exercise its discretion pursuant to the direction contained in this opinion.
Davis, C.J., not participating.
Glenn D. Schiffner, District Judge, assigned.
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The opinion of the court was delivered by
Luckert, J.:
On review of a Court of Appeals’ decision, we consider two issues of first impression for this court. Both arise from the district court’s failure to consider a defendant’s financial resources when imposing attorney fees and a fine.
First, can a defendant waive a K.S.A. 22-4513(b) requirement that a district court take into consideration “the financial resources of the defendant and the nature of the burden that payment of such sum will impose” in setting attorney fees in Board of Indigents’ Defense Services (BIDS) cases and, if so, can that waiver occur when a plea agreement states that the defense attorney will recommend payment of costs and appointed attorney fees in an “amount to be determined”? The Court of Appeals held there could be a waiver through a plea agreement and that there was a waiver in this case. State v. Copes, No. 99,403, unpublished opinion, filed December 19, 2008. While we agree a defendant can waive his or her statutory rights under K.S.A. 22-4513(b), we hold there was not an intentional relinquishment of a known right in this case because the plea agreement merely states defense counsel will recommend that the defendant pay attorney fees and does not contain an explicit waiver of rights.
The second issue is whether a district court must consider a defendant’s financial resources before imposing a fine for a conviction of driving under the influence of alcohol (DUI), fourth offense, pursuant to K.S.A. 2009 Supp. 8-1567(g)(1)? According to the defendant, the answer to this question is “yes” because K.S.A. 21-4607(3) states: “In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.” The Court of Appeals rejected this argument and answered the question “no,” concluding K.S.A. 21-4607(3) is a general statute and is not applicable in light of the more specific applicability of K.S.A. 2009 Supp. 8-1567(g)(l), which requires a $2,500 fine for a fourth or subsequent DUI conviction. State v. Copes, slip op. at 5-6. On review of that decision, we agree with the Court of Appeals’ conclusion that the mandatoiy nature of the fine means financial resources need not be considered in setting the fine amount. Nevertheless, we disagree with the ultimate conclusion that K.S.A. 21-4607(3) has no application because the statute also applies to the determination of the method of payment, and K.S.A. 2009 Supp. 8-1567(j) provides an alternative method of payment by allowing the district court to order payment of a DUI fine through community service.
Factual and Procedural Background
On November 3, 2005, Copes entered a no contest plea to DUI, fourth offense, pursuant to K.S.A. 2005 Supp. 8-1567(g). The district court sentenced Copes to 12 months in jail, with a postrelease supervision term of 12 months. In addition, the court ordered Copes to pay $350 in BIDS attorney fees and assessed a mandatory fine of $2,500 pursuant to K.S.A. 2005 Supp. 8-1567(g). On direct appeal, Copes argued the district court erred by requiring her to pay tire BIDS attorney fees and by imposing the $2,500 fine without first determining on die record whether she had the ability to pay. In State v. Copes, the Court of Appeals affirmed the district court.
Regarding the BIDS attorney fees, the Court of Appeals acknowledged that in State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), this court held, pursuant to K.S.A. 22-4513(b), the sentencing court “must consider the financial resources of the defendant and the nature of the burden diat payment will impose explicitly, stating on the record how those factors have been weighed in the court’s decision.” (Emphasis added.) Copes, slip op. at 3. The sentencing transcript indicates the district court did not consider any of the factors listed in K.S.A. 22-4513.
The Court of Appeals concluded, however, that Copes agreed to pay BIDS attorney fees as part of the plea agreement. Although the plea agreement did not specify an exact amount of BIDS attorney fees, Copes agreed that at sentencing her attorney “will recommend” that she be required to pay the costs and appointed attorney fees in “the amount to be determined.” The amount of $350 was written into the journal entry at sentencing. Following the rationale of State v. Perry, 39 Kan. App. 2d 700, 183 P.3d 12, rev. denied 286 Kan. 1184 (2008), the Court of Appeals held that Copes effectively waived her statutory rights under Robinson and K.S.A. 22-4513. Copes, slip op. at 3.
Regarding the district court’s imposition of a $2,500 fine without first considering Copes’ financial resources, the Court of Appeals held that under the circumstances — where the fine was mandatory and not discretionary — the district court was not required to make findings about Copes’ ability to pay. The panel noted that K.S.A. 21-4607(3) — which requires a district court determining the amount and method of payment of a fine to “take into account the financial resources of the defendant and the nature of the burden that its payment will impose” — is a general statute. The more specific statute, K.S.A. 2009 Supp. 8-1567, controls over the general statute, and K.S.A. 2009 Supp. 8-1567(g)(l) mandates the impo sition of a $2,500 fine for a fourth or subsequent DUI offense and does not contain a provision for waiver of the fine. The Court of Appeals held that in this situation the district court was not required to make the findings under Robinson and K.S.A. 21-4607(3). Copes, slip op. at 5-6.
This court granted the petition for review filed by Copes.
Analysis
Both issues in this appeal involve statutory interpretation, and statutory interpretation is a question of law over which appellate courts have unlimited review. See State v. Raschke, 289 Kan. 911, Syl. ¶ 3, 219 P. 3d 481 (2009) (considering K.S.A. 21-4607 and fine provision); Robinson, 281 Kan. at 539 (considering BIDS fees). Because a question of law is presented and that question is determinative of the appellate issues (and hence the case), we are able to consider Copes’ argument even though she did not raise tire issues before the district court. See State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008); see also Raschke, 289 Kan. 911, Syl. ¶ 2 (recognizes general rule that issue not raised in district court cannot be the basis for an appeal and rule’s exceptions, including when newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; applies exception to issue regarding interpretation of K.S.A. 21-4607); Robinson, 281 Kan. 538 (implicitly applying exception to issue regarding imposition of BIDS fees).
BIDS Attorney Fees
First, Copes argues that the district court erred by ordering her to reimburse BIDS attorney fees without first considering her financial resources and the burden such payment will impose as required by K.S.A. 22-4513(b). See Robinson, 281 Kan. 538. In response, the State argues that Copes effectively contracted away her rights under K.S.A. 22-4513(b) in her plea agreement. Accordingly, the district court was not required to consider Copes’ financial resources or the burden paying the BIDS attorney fees would have on her.
K.S.A. 22-4513(a) requires that BIDS attorney fees “shall be taxed” against the defendant and “shall be enforced” as judgments for payment of money in civil cases. In setting the amount of the fee, K.S.A. 22-4513(b) requires the district court to take into consideration “the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” Applying that requirement, this court has held that a district court must consider these factors on the record at the time the fee is assessed. Robinson, 281 Kan. at 546; see State v. Phillips, 289 Kan. 28, 43, 210 P.3d 93 (2009).
According to the Court of Appeals, these same rules do not apply if a defendant waives his or her statutory rights under Robinson and K.S.A. 22-4513(b) in a plea agreement. Copes did so, according to the Court of Appeals, because her plea agreement stated that “[a]t the time of sentencing, my attorney will recommend... [t]hat I be required to pay the costs of this action, and pay appointed counsel fees in the amount to be determined.” In so holding, the panel relied upon Perry, 39 Kan. App. 2d 700.
In Perry, a plea agreement required the defendant to pay “ ‘the costs of this action, and pay appointed counsel fees in the amount of $150/ ” Perry, 39 Kan. App. 2d at 700. In finding this agreement amounted to a waiver of rights granted by K.S.A. 22-45l3(b), the Court of Appeals first observed that a plea agreement is akin to a contract. Perry, 39 Kan. App. 2d at 702 (citing State v. Wills, 244 Kan. 62, 68-69, 765 P.2d 1114 [1988]). Next, the court noted that both parties to a plea agreement are bound by its terms, and Kansas appellate courts have consistently forced the parties to abide by their agreement. See, e.g., State v. Ratley, 253 Kan. 394, Syl. ¶ 5, 855 P.2d 943 (1993). The Perry court observed that Robinson recognized a criminal defendant’s statutory right to have the district court take into account the defendant’s financial resources and the nature of the burden that payment will impose before determining tire amount and method of BIDS attorney fee reimbursement. But in a plea agreement a “defendant waives statutory rights or constitutional rights in exchange for dismissal of other criminal charges or prosecutorial recommendations at sentencing.” Perry, 39 Kan. App. 2d at 702. Consequently, the Perry court found “no reason that a statutory right of this nature cannot be bargained away in connection with a plea agreement. Far more basic constitutional rights are validly bargained away in such agreements.” Perry, 39 Kan. App. 2d at 702.
Applying these points, the Court of Appeals concluded that if a plea “agreement is entered into voluntarily, knowingly, and intelligently, the terms of such an agreement are clearly enforceable as a matter of law. See State v. Shopteese, 283 Kan. 331, 340-41, 153 P.3d 1208 (2007).” Perry, 39 Kan. App. 2d at 702. Therefore, the Perry court held that where the defendant has agreed, as a part of an otherwise valid plea agreement, “to pay a specific portion of BIDS attorney fees,” the district court may forego the statutory procedure normally required by Robinson and order such reimbursement in the journal entry of sentencing. Perry, 39 Kan. App. 2d at 702.
In the present case, although Copes’ plea agreement did not specify an exact sum of BIDS fees, the Court of Appeals found Copes’ situation to be comparable to that in Perry.
This result is contrary to the conclusion of a different Court of Appeals panel that disagreed with the notion of applying Perry to a situation where the amount of BIDS fees is not specified in the plea agreement. In the unpublished opinion of State v. Gillespie, No. 100,570, filed September 18, 2009, a split panel found Perry to be distinguishable. There, Gillespie’s plea agreement contained language identical to Copes’ in that it specifically stated his attorney “will recommend” that Gillespie be required to pay “appointed counsel fees in the amount to be determined.” Like the plea agreement in our case, Gillespie’s agreement did not say he agrees to pay fees, nor was a specific amount of BIDS attorney fees mentioned in the agreement.
The Gillespie majority emphasized that unlike the situation in Perry, Gillespie merely agreed that his attorney would malee the general recommendation regarding the payment of BIDS attorney fees. Further, the amount of fees was left open-ended in Gillespie’s plea agreement. The majority remained unconvinced that Gillespie waived his rights under Robinson “for the imposition of an open-ended BIDS fee.” Copes, slip op. at 7-8. The attorney fee was, therefore, reversed and the case was remanded for a hearing to consider Gillespie’s financial resources. Copes, slip op. at 8.
The dissenting judge disagreed with the Gillespie majority’s decision to remand the case to the district court for a Robinson analysis. The dissent would have followed the rationale of Perry and would have found that Gillespie bargained away his right to the financial considerations mandated by Robinson. Following the reasoning in Perry, the dissent reiterated that a defendant can plea bargain away the most basic fundamental constitutional rights and can also bargain away “far less significant statutory rights.” Copes, slip op. at 9. As for the fact that the amount of BIDS fees was specified in Perry’s plea agreement, the Gillespie dissent observed that the district court was not bound by the terms of the plea agreement and, thus, was not obligated to impose the agreed-upon amount of fees. For this reason, the dissent found it of no significance that Gillespie’s plea agreement did not state a specific amount of BIDS fees. Copes, slip op. at 10.
Both of these Court of Appeals’ decisions are consistent to the extent of accepting that a defendant can waive rights in a plea agreement and that the waiver may extend to the right to have a court consider statutory factors in setting attorney fees. The first of these premises is consistent with decisions of this court. See, e.g., State v. Patton, 287 Kan. 200, Syl. ¶ 13, 195 P.3d 753 (2008) (knowing and voluntary waiver of a statutory right to appeal is generally enforceable); State v. Robinson, 233 Kan. 384, 385, 662 P.2d 1275 (1983) (same relating to statutory right to jury trial). This court has not considered the second of these premises — -that the same rule would apply to the right to have statutory findings regarding the amount of attorney fees. We note, however, other courts have reached this same conclusion. See, e.g., People v. Scott, 176 P.3d 851, 853 (Colo. App. 2007) (parties to plea agreement may stipulate that the sentence will require reimbursement of court-appointed counsel costs); State v. Moore, 500 N.W.2d 75, 76 (Iowa 1993) (indicating that parties are not prevented from entering into agreement concerning payment of costs and attorney fees); State v. Thorstad, 261 N.W.2d 899, 902 (N.D.), cert denied 436 U.S. 906 (1978) (agreement to pay restitution for cost of court-appointed attorney meant financial resources and other statutory factors did not have to be considered); State v. Thrower, 62 Ohio App. 3d 359, 376, 575 N.E.2d 863 (1989) (defendants failed to affirmatively show that payment of counsel fees out of forfeiture proceeds was part of the plea agreement which was stated on the record).
We agree with these authorities in general and find no reason to distinguish a knowing, voluntaiy, and intelligent waiver of the statutory rights under K.S.A 22-4513(b) from waivers of constitutional rights through the same process. Hence, we conclude a defendant may waive the right to have a district court make the findings required by K.S.A. 22-4513(b) and may do so in a written plea agreement. If there is a knowing, voluntary, and intelligent waiver, the district court may order payment of BIDS attorney fees without making the findings required by K.S.A. 22-4513 and Robinson, 281 Kan. 538.
In addition, we agree with the premise of Perry and Gillespie that a plea agreement is generally subject to contract principles. In several cases, we have noted that application of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional implications of the plea bargaining process may require a different analysis in some circumstances. See State v. Boley, 279 Kan. 989, 996, 113 P.3d 248 (2005); see also Santobello v. New York, 404 U.S. 257, 260-62, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971) (accused pleading guilty must be counseled, absent a waiver).
Nevertheless, it is a fundamental principle of contract law that there must be a meeting of the minds regarding essential terms in order to have a binding contract. Mohr v. State Bank of Stanley, 244 Kan. 555, 572, 770 P.2d 466 (1989); see State v. Thompson, 15 Neb. App. 764, 773, 735 N.W.2d 818 (2007) (as with other contracts, courts cannot rewrite plea agreement to include terms not present). Here, there is not an agreement regarding the amount of the fees or, more significantly, as to a waiver of the rights granted by K.S.A. 22-4513(b). Although Copes’ written plea agreement contained an extensive recitation of rights and an explicit waiver of those rights, that recitation made no mention of attorney fees or the district court’s obligation to consider Copes’ financial resources or the burden the fees would impose. In other words, the contract terms the State seeks to enforce — the agreement to waive rights under K.S.A. 22-4513(b) and the fee amount — are missing from the contract.
The absence of an explicit waiver of the rights granted by K.S.A. 22-4513(b) — i.e., to have a district court consider financial resources and the burden of an attorney fee judgment — creates more than a contract problem for the State: For a “ waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known right or privilege.” ’ [Citations omitted.]” State v. Moses, 280 Kan. 939, 946, 127 P.3d 330 (2006). Under the plea agreement before us, we cannot determine that there was an intentional relinquishment of a known right. Rather, Copes merely acknowledged that her attorney “will recommend” that she be required to pay “appointed counsel fees in the amount to be determined.” This portion of Copes’ plea agreement placed her in the same position she would have been had the plea agreement never mentioned the BIDS attorney fees at all— K.S.A. 22-4513(a) requires that all convicted indigent defendants “shall be taxed” the BIDS attorney fees. And with this taxing of fees comes the required consideration of the defendant’s financial resources under K.S.A. 22-4513(b).
This case is remanded to the district court with directions to consider Copes’ financial resources and the burden of paying the BIDS attorney fees.
Fine and Financial Resources
Next, Copes argues the district court erred by imposing the statutorily mandated fine of $2,500, pursuant to K.S.A. 2009 Supp. 8-1567(g)(l), for a fourth DUI conviction without first considering her financial resources and the burden its payment will impose. She bases this argument on the language in K.S.A. 21-4607(3), which provides that the district court, when determining “the amount and method of payment” of a fine, “shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.” (Emphasis added.) The State argues that K.S.A. 21-4607(3) does not apply because K.S.A. 2009 Supp. 8-1567(g)(l), a specific statute, controls and provides that upon being convicted of a fourth or subsequent DUI conviction, a person “shall” be fined $2,500.
Relevant Statutes
To resolve this issue, two statutes must be considered. The first, K.S.A. 21-4607(3), provides:
“In determining the amount and method of payment of a fine, the court shall taire into account the financial resources of the defendant and the nature of the burden that its payment will impose.”
The second, K.S.A. 2009 Supp. 8-1567, provides in pertinent part:
“(g)(1) On the fourth or subsequent conviction of a violation of this [DUI] section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year’s imprisonment and fined $2,500. . . .
“(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.”
These provisions raise separate considerations relating to the application of K.S.A. 21-4607(3): 8-1567(g) relates to the amount of the fine and subparagraph (j) relates to the method of payment.
Amount of Fine
With regard to the State’s argument about the mandatory nature of the amount of the fine for a fourth or subsequent DUI conviction, this court reviewed a similar issue in Raschke, 289 Kan. 911, where we held: “When a sentencing judge imposes a mandatory minimum fine, he or she need not take into account the financial resources of the defendant and the nature of the burden that its payment will impose, per K.S.A. 21-4607(3).” Raschke, 289 Kan. 911, Syl. ¶ 6. There, Raschke pleaded guilty to four counts of forgery in violation of K.S.A. 21-3710(a)(l). Subsections of the statute set forth fine amounts for first, second, and third or subsequent forgery convictions. For a first conviction, “a person shall be . . . fined the lesser of the amount of the forged instrument or $500”; for a second conviction, “a person shall be fined the lesser of the amount of the forged instrument or $1000”; for a third or subsequent conviction, “a person shall be . . . fined the lesser of the amount of the forged instrument or $2,500.” K.S.A. 21-3710(b)(2), (3), and (4).
In determining whether the legislature’s use of “shall” makes the forgery fine provisions mandatory or directory, this court considered the following factors: (1) legislative context and history, (2) substantive effect on a party’s rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision. We concluded that the word “shall” in K.S.A. 21-3710(b)(2)-(4) is mandatoiy rather than directory. In other words, “[a]t least the minimum fine must be imposed upon every forgery conviction.” Raschke, 289 Kan. at 922.
Then, we considered whether the financial consideration requirements of K.S.A. 21-4607(3) must be applied to the mandatory minimum forgery fines. We concluded that they do not. Considering the legislative history of the forgery provisions, the Raschke court noted that there was no reference in the legislative committee notes to an overlay of K.S.A. 21-4607. Moreover, K.S.A. 21-3710(b)(2)-(4) is the newer of the two statutes and “presumably the more recent statement of legislative intent.” Raschke, 289 Kan. at 923. In addition, K.S.A. 21-3710(b)(2)-(4) deals specifically with fines for forgery, whereas K.S.A. 21-4607(3) deals with criminal fines generally. The Raschke court concluded: “The concept of inflexible mandatory minimum fines ... is incompatible with the malleability inherently injected into fine setting by consideration of defendant’s financial circumstances.” Raschke, 289 Kan. at 924.
In the present case, a similar analysis applies in considering whether a fine must be imposed and in determining the amount of the fine for a fourth or subsequent DUI conviction. In considering whether the word “shall” in K.S.A. 2009 Supp. 8-1567(g)(l) is mandatory or directory, we consider the four factors laid out in Raschke. With regard to the first factor — legislative context and history — clearly the DUI fines are specific to the offense and correspond to the number of convictions. The legislative histoiy of subsection (g) is not particularly helpful but shows that the $2,500 fine was set for fourth or subsequent DUI convictions in 2001. See L. 2001, ch. 200, sec. 14. Before the 2001 amendment, a fourth DUI conviction received the same possible fine as a third DUI conviction in that “third or . . . subsequent conviction[s]” were to be fined “not less than $1,000 nor more than $2,500.” See L. 1994, ch. 291, sec. 2. By placing the sole fine of $2,500 on fourth or subsequent convictions, the legislature showed its intent to withdraw any discretionary range for this category of offenders.
With regard to the second factor — substantive effect on a party’s rights — it is indisputable that “[prescription of a minimum criminal sentence certainly is material; it is not simply a mode of procedure intended to secure order, system, and dispatch of the public business.” Raschke, 289 Kan. at 921-22. The Raschke analysis of the third factor — the existence or nonexistence of consequences for noncompliance — applies equally to the DUI fine for fourth or subsequent offenses: Although the consequences for noncompliance are implicit, they are real, and at a minimum raise a significant question of whether a DUI sentence without a fine in some amount would be illegal under K.S.A. 22-3504 and subject to vacation and correction at any time. See Raschke, 289 Kan. at 921-22. Further, like the forgery statute, there is no “waiver” provision in the DUI statute. Under the fourth factor, the Court of Appeals has previously concluded the imposition of a DUI fine is mandatory. State v. Wenzel, 39 Kan. App. 2d 194, 202-03, 177 P.3d 994 (2008), aff'd in part Phillips, 289 Kan. 28; State v. Segovia, 19 Kan. App. 2d 493, 494, 872 P.2d 312 (1994); State v. Shuster, 17 Kan. App. 2d 8, 9, 829 P.2d 925 (1992). In Raschke, this court stated: “We agree with the reasoning of Shuster and Segovia and the most recent Court of Appeals’ case examining a mandatory fine for driving under the influence and K.S.A. 21-4607, State v. Wenzel, 39 Kan. App. 2d 194, 202-03, 177 P.3d 994 (2008).” Raschke, 289 Kan. at 924. Hence, the precedent of Wenzel, Segovia, and Shuster estab lishes a pattern of demonstrating the mandatory, not directory, nature of DUI fines.
This leads to the conclusion that the word “shall” in K.S.A. 2009 Supp. 8-l567(g)(l) makes imposition of a $2,500 fine for a fourth or subsequent driving under the influence conviction mandatory, rather than directory. As we concluded in Raschke, the specific, more recent requirement of a mandatory fine leaves no room for considering financial resources. The district court was required to impose a $2,500 fine against Copes for her fourth DUI conviction and was not required to take into account the financial resources of the defendant and the nature of the burden its payment will impose, per K.S.A. 21-4607(3), in deciding to impose the fine and in deciding the amount of the fine.
Method of Payment
There remains, however, a question of whether the district court was required to consider Copes’ financial resources in determining the method of payment. Again, K.S.A. 21-4607(3) states the district court “shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose” when “determining the amount and method of payment of a fine.” (Emphasis added.) The community service option provided in K.S.A. 2009 Supp. 8-1567(j) creates an alternative method of payment.
The impact of the community service option was not addressed by the Court of Appeals. Moreover, the parties had not addressed the provision until prompted to do so by this court’s questions at oral argument. Nevertheless, in applying a statute, courts are required to consider a statute as a whole. See Southwestern Bell Telephone Co. v. Beachner Const. Co., Inc., 289 Kan. 1262, 221 P.3d 588 (2009). Consequently, we cannot ignore K.S.A. 2009 Supp. 8-1567(j) and its grant of discretion to order payment of a DUI fine through community service.
Where the amount of fine is discretionary, this court has required the district court to “state on the record that he or she has taken into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose.” State v. McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988). We see no reason to require a different procedure when the method of payment is discretionary. In doing so, we recognize there are considerations other than ability to pay that are relevant to the determination of whether the public service option will be ordered. N ev-ertheless, the existence of other factors influencing a court’s discretion does not diminish a statutory requirement that a specific factor be considered. In addition, the method of payment may be equally relevant to a district court’s decision in situations where a monetary fine imposes little or no burden on a defendant; in such a case, the court might determine the commitment of time to community service is a more appropriate penalty. Consequently, applying K.S.A. 21-4607(3) we hold that a district court must take into account the defendant’s financial resources and the burden of the fine when considering the method of payment of a fine for a fourth or subsequent DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A. 2009 Supp. 8-1567(j). Contrary holdings in Wenzel, 39 Kan. App. 2d 194; Segovia, 19 Kan. App. 2d 493; and Shuster, 17 Kan. App. 2d 8, are overruled.
In summary, regardless of Copes’ financial resources, the district court was correct to impose the entire $2,500 fine, a mandatory fine, for her fourth DUI conviction. But the legislature clearly contemplated the notion of financial hardship or the burden of payment by allowing the discretionary imposition of community service (credit of $5 per hour) to offset the total amount due. By failing to consider Copes’ ability to pay and the burden the payment will impose on her, the district court bypassed the consideration of whether community service was an option for her.
The Court of Appeals’ decision affirming the district court is reversed and remanded. The district court’s decision is reversed and remanded for consideration of Copes’ financial resources with respect to the amount of BIDS attorney fees she is required to pay and to the method of payment of her DUI fine.
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The opinion of the court was delivered by
Beier, J.:
Raul Manuel Magallanez appeals his jury convictions in three child sexual abuse cases tried together by the district court. The district judge sentenced Magallanez to life imprisonment in 06 CR 681, consecutive to a total of 904 months in 07 CR 94 and 07 CR 95. Magallanez filed this timely appeal, and we have jurisdiction under K.S.A. 22-3601(b)(l).
MagaUanez raises 15 issues. The following five are dispositive under the cumulative error doctrine:
(1) Whether the State committed reversible prosecutorial misconduct in closing argument by vouching for the credibility of witnesses, diluting its burden of proof, attempting to inflame the passions of the jury, and misstating the law;
(2) Whether the limiting instruction on prior crimes or civil wrongs was overbroad;
(3) Whether the district judge misapplied the rape shield statute by excluding relevant evidence concerning J.P.’s credibility and veracity;
(4) Whether the district court lacked jurisdiction to convict Ma-gallanez of aggravated indecent liberties with a child in Counts 24 and 34 of 07 CR 94; and
(5) Whether the district judge erred in giving an Allen-type instruction to the jury.
Factual and Procedural Background
J.P. — 06 CR 681
J.P. was 13 years old in the fall of2006 when she met MagaUanez through a mutual friend. MagaUanez was 31 years old but spent much of his time with teenagers. J.P. and MagaUanez got to know each other over a few weeks by exchanging phone calls, text messages, and e-mail and through social networking websites like MySpace.com.
On October 4, 2006, J.P. arranged to meet MagaUanez after school. MagaUanez picked J.P. up in his car and they drove to the zoo. J.P.’s brother saw them together and told his parents. J.P.’s parents took away her cell phone for a week and told her to stop seeing MagaUanez. But, when J.P. got her cell phone back, she and MagaUanez resumed their frequent caUs and texts. J.P. testified that, on November 1, 2006, J.P. left the home where she was babysitting to meet MagaUanez in his car and had sexual intercourse with him in the backseat.
In late November, the weekend after Thanksgiving, J.P. spent the night with her friends D.D. and H.PI. at D.D.’s sister’s house to babysit. Late that evening, J.P. snuck out of the house to see Magallanez, who was at a nearby park. D.D.’s sister found out, and the story eventually made its way back to J.P.’s mother. The next day, J.P.’s mother confronted her, and J.P. eventually said that she had had sex with Magallanez on October 4 at the zoo. J.P. also reported to the police and later to personnel at the Child Advocacy Center that she had sexual intercourse with Magallanez on October 4.
On December 7, 2006, Magallanez was arrested and charged with rape (sexual intercourse with a child under the age of 14), a Jessica’s Law offense. At the preliminary hearing in this case, J.P. testified under oath that she had had sex with Magallanez on October 4. But, on August 7, 2007, while meeting with the prosecutor in preparation for trial, J.P. disclosed that she had bed about the date and location of the sexual intercourse with Magallanez. She then said she had had sexual intercourse with Magallanez at approximately 8 p.m. on November 21, 2006, in Magallanez’ car outside the house where she was babysitting.
The same day that J.P. changed her story, the State filed a motion to amend its complaint to change the date of occurrence from October 4 to November 1, 2006. The district judge granted the State’s motion the next day, over defense counsel’s objection. Trial began 3 days later. The jury convicted Magallanez of rape of J.P., and the district judge sentenced him to fife in prison under Jessica’s Law. The trial court ordered the sentence to run consecutive to the sentences in the two other cases consolidated for trial.
S.S. —07CR94
In the fall of 2005, S.S. was 14 years old and dating Magallanez’ nephew, D.S. About half the time, D.S. lived with Magallanez and Magallanez’ mother. S.S. would sneak out of her house at night to see D.S. About September 2005, S.S. started spending more time alone with Magallanez. S.S. testified that Magallanez began providing her with alcohol and marijuana on a regular basis.
In October 2005, S.S. and Magallanez began having sexual intercourse and engaged in sexual activities numerous times through October 2006. S.S. testified that Magallanez always provided S.S. with alcohol before having sexual intercourse with her and that she would get so intoxicated she could barely walk or see straight. S.S. continued to see D.S. and claimed that, on one occasion, Magal-lanez videotaped S.S. and D.S. engaging in sexual acts.
In October 2005, Magallanez took S.S. to an adult products store called ‘“Whispers,” where he bought her sex toys. As a result of this incident, Magallanez was charged and convicted in December 2005 of promoting obscenities to a minor.
Angela Proehl, an investigator with the Kansas Department of Social and Rehabilitation Services, interviewed S.S. in November 2005. S.S. denied any sexual contact with either D.S. or Magalla-nez. In February 2006, after Magallanez had been incarcerated for his December 2005 conviction, S.S. disclosed that she had engaged in several sex acts with Magallanez. During each, S.S. said, she was either drunk or high. S.S. also stated that Magallanez filmed her giving D.S. oral sex and that many of the alleged sex acts occurred at Magallanez’ house.
In the fall of 2006, after Magallanez was released, S.S. resumed her relationship with him. On December 4, 2006, after ending the relationship, S.S. spoke with Detective Mark Schondelmaier, disclosing sexual contacts that had occurred between her and Magal-lanez after Magallanez was released from prison. S.S. also disclosed knowledge of Magallanez having sexual intercourse with J.P. and K.E. After Magallanez was arrested and charged in J.P.’s case, the State also sought prosecution in S.S.’s case.
As to S.S., Magallanez was convicted of 10 counts of rape based on S.S.’s inability to consent because of intoxication; 3 counts of aggravated criminal sodomy by the same means; 2 counts of aggravated indecent liberties with a child, based on S.S. being between 14 and 16 years of age; 1 count of sexual exploitation of a child; 1 count of indecent liberties with a child; 1 count of indecent solicitation of a child; 1 count of criminal sodomy; 17 counts of felony furnishing alcohol to a minor for illicit purposes; and 1 count of misdemeanor furnishing alcohol to a minor. The court sentenced him to 2,316 months, which was reduced to 452 months under the double rule of K.S.A. 21-4720, consecutive to the sentences in the two other cases consolidated for trial.
KE. — 07 CR 95
K.E. turned 15 in November 2006, having met Magallanez through a friend the previous month. Magallanez and K.E. communicated through texts and instant messages, many of which were sexual in nature. K.E. testified that Magallanez would text her that he wanted to have sex with her. K.E. snuck out of her home and met Magallanez. He provided her with alcohol, and she had sexual intercourse with him. K.E. engaged in sexual acts with Magallanez from October through December 2006.
In November 2006, K.E. allegedly had sex with three young men and Magallanez at a party at Magallanez’ house. K.E. claimed that Magallanez provided her with alcohol and marijuana and that she became intoxicated. K.E. testified that all of the acts of sexual intercourse were at Magallanez’ suggestion.
On December 20, 2006, Detective Lisa Sage interviewed K.E. regarding the alleged sexual acts with Magallanez and the three young men. K.E. detailed several sexual acts with Magallanez that had allegedly occurred that fall.
As to K.E., Magallanez ultimately was convicted of three counts of rape based on K.E.’s inability to consent because of intoxication; three counts of aggravated indecent liberties with a child; one count of sexual exploitation of a child; and four counts of felony furnishing alcohol to a minor for illicit purposes. The district judge sentenced him to 773 months’ incarceration, which was reduced to 452 months under the double rule of K.S.A. 21-4720, consecutive to the sentences in the two other cases consolidated for trial.
Analysis
We hold that the five listed appellate issues have merit, that they require reversal of all of Magallanez’ convictions, and that remand for further proceedings is necessary on all but two counts. We address each of the errors in turn below. We decline to address Magallanez’ other claims of error, either because they appear unlikely to arise on remand or deal with sentencing.
Prosecutorial Misconduct
On appeal, we analyze allegations of prosecutorial misconduct in two steps.
“ ‘First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.’ ” State v. Richmond, 289 Kan. 419, 439, 212 P.3d 165 (2009) (quoting State v. White, 284 Kan. 333, Syl. ¶ 1, 161 P.3d 208 [2007]).
See State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
Magallanez argues that there were four instances of prosecuto-rial misconduct during the State’s opening and rebuttal portions of its closing argument in his trial. He entered a timely objection in only one instance, but a timely objection is not required to preserve a prosecutorial misconduct claim based on comments made during opening statements or closing arguments. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009); State v. Decker, 288 Kan. 306, 314, 202 P.3d 669 (2009).
First, the prosecutor asked the jury to pay particular attention to certain jury instructions:
“There’s a common knowledge and experience instruction. There’s also one that says you determine the weight and credibility of witnesses. That one’s fairly self-explanatory. The most important is that you have the right about which a witness has testified to use your common knowledge and experience. That opens up your ability to bring in what you know.
"This is a case of teenagers, and a continuum of teenagers, and an adult male. These are not isolated little pieces. It’s a continuum of time through - - at the end of2005 and through 2006. For example, you trust children until you have a reason not to. We assume that. We assume we have taught them correctly. Some people call those adultisms. We, as parents, malee inferences. We make beliefs that what we have done is right.” (Emphasis added.)
The second comment about which Magallanez complains concerned the reasonable doubt standard. The prosecutor stated: “Reasonable doubt is not beyond any doubt, it’s an individual standard. It’s a standard that when you believe he’s guilty you’ve passed beyond a reasonable doubt.”
Magallanez’ third challenge to the prosecutor’s closing argument focuses the prosecutor’s statement that “[t]he sex with J.P. was not ‘a long foreplay lovemaking session’ ” and from the following comments about S.S. and K.E.:
“Now, you have heard testimony from [S.S.], and you can infer from that, that young lady had an alcohol problem. She drank, and she drank a lot. And [Magal-lanez] knew that. Did he help her? Did he stop her? Did he go to her parent and say, I know your daughter, she’s wanting alcohol all the time? No. He just loaded her up and used her over and over and over and over and over.
“And then we go play in Peter Pan Park, and what are we doing there? There we’re getting about as visible as we can get. And the one boy, where does that boy get sent? Go away, boy, my nephew and l are going to use her together.”
“The exploitation is at the party, and the party is - - party spoke for itself . . . You want her, you go use her, too. Who was he telling that to? Other adults? My gosh he - - 14 and 15 - - 14 and 16-year-old boys. He doesn’t even stop that. He takes no steps except to exploit them all. He gives them all alcohol, he gives them all drugs, and tosses [KE.] to them. Here you go. For wherever she came from, for whatever her problems were, you heard her sister say she brought her here. She got here for some reason. Her sister said she worked and she went to school and she was trying to do the best she could, and instead someone else plies her with alcohol and tosses her and exploits boys to do it with her too.”
“And again and again everyone used [KE.] and everyone uses [S.S.]” Why not? Because they’re just making it up. It’s no big deal to get around this . . . By November 12th he’s done with [KE. ] He’sjinished with her. Throw [KE. ] away.”
“Fault [S.S.] or not, she sat there in front of people after repeated tellings of this story and said, yes, that’s me in my underwear, so sexualized that it was numbing.” (Emphasis added.)
The fourth and final prosecutorial misconduct argument asserted by Magallanez is based on the following statements by the prosecutor: “If you can’t consent [to sex] because of the effect of drugs or alcohol, . . . which eliminates that ability to consent, it is rape. If you provide it and it’s apparent to you that they’re engaging in the use of alcohol to an extent that they’re affected, it’s rape.” (Emphasis added.) Magallanez immediately objected to this comment as a misstatement of law. The district judge overruled the objection. Later, discussing Magallanez’ sexual relations with K.E., the prosecutor stated: “[K.E.] said . . . she hadn’t had anything to drink, so when he fingers her or has intercourse with her there it drops to aggravated indecent. That’s a - - law, 14 and 15, if you don’t induce them with alcohol or drugs, it’s a different crime.” (Emphasis added.)
With regard to the first alleged error, it is improper for a lawyer to comment on a witness’ credibility. See State v. Elnicki, 279 Kan. 47, 60, 105 P.3d 1222 (2005); State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000). “When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.” Pabst, 268 Kan. at 507. “The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.” Pabst, 268 Kan. at 510.
Under this well-settled law, Magallanez’ first argument on pros-ecutorial misconduct has merit. When the prosecutor said, “[Y]ou trust children until you have a reason not to. We assume that. We assume we have taught them correctly,” he essentially gave un-sworn testimony about the truthfulness of teenagers and children. This statement improperly bolstered the credibility of the State’s witnesses and was well outside the wide latitude granted prosecutors in closing argument.
Magallanez’ second argument on prosecutorial misconduct also has merit. Our previous cases have demonstrated that prosecutors embellish on the definition of the burden of proof in criminal cases at their peril. See State v. Brinklow, 288 Kan. 39, 49-50, 200 P.3d 1225 (2009) (discussing State v. Wilson, 281 Kan. 277, 286, 130 P.3d 48 [2006]); and State v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14 (2006) (citing to State v. Henry, 273 Kan. 608, 619, 44 P.3d 466 [2002]). This case is another demonstration of that point.
The prosecutor’s statement that the measure of reasonable doubt is “an individual standard ... a standard that when you believe he’s guilty you’ve passed beyond” did, as Magallanez asserts, incorrectly define and impermissibly dilute the State’s burden of proof. A juror’s mere belief that an accused individual is guilty does not automatically mean that the State has met its burden. See Brinklow, 288 Kan. at 49-50 (prosecutor had told jury reasonable doubt satisfied when jury “just knew” defendant guilty; according to prior cases, “[i]f a jury cannot convict because com mon sense tells it the defendant is guilty and cannot convict because it is simply reasonable to believe the defendant did it, then it is hkewise improper to convict because the jury just knows that the defendant did it”). Such a misstatement of law is outside the wide latitude given to prosecutors in closing argument. See Bunyard, 281 Kan. at 406. “A misstatement of the law by the prosecutor denies the defendant a fair trial when the facts are such that the jury could have been confused or misled by the statement.” 281 Kan. at 404.
Magallanez challenges the third set of statements by the prosecutor set out above as irrelevant to any point of law and thus designed exclusively and inappropriately to inflame the jury. The State argues that the statements drew reasonable inferences based on trial evidence showing that Magallanez spoke to the victims during the relevant time period, that he had sexual relations with S.S. and K.E. after they became intoxicated, and that he orchestrated K.E.’s sexual activity with others. The State also argues that the statements were supported by S.S.’s testimony that she felt Magallanez had taken advantage of her. As to the statement regarding the length of Magallanez encounter with J.P., the State argues that this comment was intended to show the jury that the crime was committed within a short gap in time between text messages and cell phone calls shown by phone records.
“Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the juiy from its duty to make decisions based on tire evidence and the controlling law.” State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006); see also State v. Tosh, 278 Kan. 83, 90, 98, 91 P.3d 1204 (2004) (prosecutor’s remark that victim had been raped second time was a character attack at trial outside wide latitude prosecutors allowed in discussing evidence); State v. Henry, 273 Kan. 608, 621, 44 P.3d 466 (2002) (prosecutor’s comment urging jury to think about Mother’s Day, how victim’s mother felt inflamed passion, prejudice of jury); but see State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 (1999) (prosecutor’s comment that jury should not let defendant get away with killing 21-year-old victim not improper; State asking “jury to seriously consider the nature of the defendant’s act toward the victim”).
The State is correct that the challenged statements drew reasonable inferences from the admitted evidence. Testimony and documents demonstrated Magallanez communicated with S.S. and K.E. during the relevant time period, that he provided S.S. and K.E. with alcohol, that S.S. and K.E. had trouble functioning as a result, and that Magallanez had sexual intercourse, apparently not marked by time-consuming tenderness, with each of them. The prosecutor’s employment of the terms “used,” “throw away,” and “toss” was perhaps more colorful than it needed to be, gratuitously implying that Magallanez treated his young victims like so much garbage, but we do not regard these statements as outside the wide latitude we grant prosecutors in discussing the evidence. Rather, this language, the reference to the absence of foreplay, and the prosecutor’s observation that S.S.’s reaction was “so sexualized that it was numbing” amounted to allowable argument on Magallanez’ pattern of conduct and S.S.’s demeanor on the stand.
Finally, Magallanez contests the legal accuracy of the last set of statements by the prosecutor on the role of a victim’s intoxication on its theories on rape and sodomy.
The prosecutor was correct that the applicable statutes mention the mere “effect” of alcohol or drugs. K.S.A. 21-3502 states that rape is “[s]exual intercourse with a person who does not consent to the sexual intercourse . . . when . . . the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug, or other substance, which condition was known by the offender or was reasonably apparent to the offender.” (Emphasis added.) Likewise, under K.S.A. 21-3506, aggravated criminal sodomy can occur with an individual who does not consent or who is incapable of giving consent “because of the effect of any alcoholic liquor, narcotic, drug, or other substance, which condition was known by the offender or was reasonably apparent to the offender.” (Emphasis added.) However, a general effect on a victim is not all the State must prove. When the State’s theoiy is lack of consent based on the victim’s intoxication, it must also show that the intoxication made the victim’s consent impossible and/or legally ineffective.
The context saves the State from a further assessment of error attributable to these statements. When the prosecutor’s references to the importance of the effect of intoxication are read holistically with surrounding text, it becomes apparent that he was attempting to explain the difference among charges brought by the State. Those instances in which K.E. and Magallanez engaged in sexual intercourse when K.E. was not under the influence of alcohol or drugs led to charges of aggravated indecent liberties. Those instances in which K.E. was under the influence of alcohol or drugs led to charges of rape. Although the prosecutor came very close to stepping over the line in this instance, we are persuaded that these comments were inartful but not inaccurate.
Having established that there were two instances of error by the prosecutor here, we would ordinarily move to the second prong of prosecutorial misconduct analysis, asking whether the conduct prejudiced Magallanez and denied him a fair trial. See State v. Carter, 284 Kan. 312, 327, 160 P.3d 457 (2007).
" ‘In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.’ ” Richmond, 289 Kan. at 440 (quoting State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 [2008]).
See also Tosh, 278 Kan. at 93 (second step essentially directed to whether misconduct so prejudicial that it denied fair trial).
Viewed in isolation, and given the amount of evidence against Magallanez, we would be disinclined to hold that the prosecutor’s two errors require reversal under the second prong of our analysis. Neither error appears to be gross and flagrant, and we detect no ill will in the prosecutor s conduct. These errors cannot, however, be viewed in isolation. There were other errors that impeded the conduct of a fair trial in this case, as we explain further below.
Shotgun Limiting Instruction on Prior Crimes or Civil Wrongs
Before and during trial, evidence was admitted of three prior crimes or civil wrongs committed by Magallanez. First, the State filed a pretrial motion to admit evidence of the “Whispers” incident, arguing the evidence showed Magallanez’ motive and intent. Magallanez objected. The district judge granted the State’s motion, holding that the evidence was admissible to prove Magallanez’ plan, knowledge, and preparation, but he also noted that Magal-lanez would have a continuing objection when the evidence was admitted during trial.
At trial the judge also admitted evidence of a second rape of J.P. Both J.P. and her mother testified that Magallanez forced J.P. to have sex during the weekend after Thanksgiving 2006. The defense did not object to J.P.’s mother’s testimony during direct, and the defense introduced J.P.’s testimony on this topic during her cross-examination.
Evidence of a third prior crime or civil wrong came in through K.E., who testified without objection on both her direct examination and cross-examination that Magallanez had sold marijuana.
The district judge gave the limiting instruction from PIK Crim. 3d 52.06: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant’s motive, opportunity, intent, preparation, plan, knowledge, or identity.” Magallanez did not object. Now, for the first time on appeal, he argues this instruction’s overbreadth requires reversal.
Because Magallanez failed to object to the giving of this instruction, this court reviews this issue under the clearly erroneous standard. See State v. Vasquez, 287 Kan. 40, Syl. ¶ 6, 194 P.3d 563 (2008). “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.” Vasquez, 287 Kan. 40, Syl. ¶ 6.
The instruction given by the court has been described as a “shotgun” instruction for its failure to focus specifically on the object of proof, and it has been repeatedly criticized by this court. See State v. Donnelson, 219 Kan. 772, 777, 549 P.2d 964 (1976); State v. Moore, 218 Kan. 450, 455-56, 543 P.2d 923 (1975); State v. Rasler, 216 Kan. 582, 587, 533 P.2d 1262 (1975); State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974) abrogated on other grounds State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). As we have stated previously, rarely will all eight of the factors enumerated in K.S.A. 60-455 and PIK Crim. 3d 52.06 be at issue in a single trial; thus the shotgun instruction is rarely proper and increases the risk of error. See Donnelson, 219 Kan. at 777; State v. Gibson, 30 Kan. App. 2d 937, 950, 52 P.3d 339 (2002). “Those elements which are obviously inapplicable should not be instructed upon.” Bly, 215 Kan. at 176.
Regarding the “Whispers” evidence, the trial court determined that evidence of the prior conviction for promoting obscenity to a minor was relevant to prove Magallanez’ plan, knowledge, and preparation. Although we agree that admission for these limited purposes was proper, the district judge should have listed only these purposes in any related limiting instruction. It is error to instruct upon any K.S.A. 60-455 factor that is obviously inapplicable. As to the evidence of the second rape of J.P. and Magallanez’ alleged selling of marijuana, the judge also erred in fading even to specify the relevant factor to be proved, much less to instruct only upon it. See State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006).
Given the weight of the evidence against Magallanez, these errors on the limiting instruction for the K.S.A. 60-455 evidence may have been deemed harmless standing alone. But they do not stand alone. Instead, they, like the two incidents of prosecutorial misconduct discussed above, are among the errors we must consider in the cumulative error calculus below.
Partial Exclusion of Relevant Evidence
On this issue, Magallanez alleges that the district judge improp erly excluded a portion of a letter from J.P. to Magallanez, which discussed J.P.’s sexual history and contained an admission that she lied to Magallanez about it. The defense filed a pretrial motion for admission of the letter, arguing that it would be useful to impeach J.P.’s credibility. The State objected that the letter was barred by the rape shield statute, K.S.A. 21-3525. The district judge agreed, saying: “[T]he fact that [J.P.] may not have been a virgin or had sex on a previous time [was] not relevant in this case.”
During J.P.’s testimony at trial, the prosecutor asked her if she and Magallanez ever talked about sex. J.P. said that Magallanez had asked her how she felt about it and that she had told him she “wanted to lose [her] virginity to someone . . . [she] really cared about.” Later in J.P.’s direct examination, the State moved to admit a redacted version of the disputed letter. Magallanez objected, arguing that the entire letter should be admitted because J.P.’s testimony implying she had been a virgin when she and Magallanez had sex opened the door to evidence of her earlier sexual experience. The district judge overruled Magallanez’ objection and admitted the redacted version of the letter.
Earlier cases have held that our review of a district judge’s decision to exclude evidence under the rape shield statute is subject to an abuse of discretion standard. See State v. Lackey, 280 Kan. 190, 219, 120 P.3d 332 (2005); State v. Zuniga, 237 Kan. 788, 793, 703 P.2d 805 (1985); State v. Bressman, 236 Kan. 296, 300, 689 P.2d 901 (1984). Recentiy, however, this court has refined its general analysis of evidentiary rulings and determined that multiple steps are required. See State vs. Reid, 286 Kan. 494, 504-09, 186 P.3d 713 (2008). These steps must be followed for evidence that may be covered by the rape shield statute as well.
First, the court determines relevance, which has two components, materiality and probativeness. Materiality concerns whether the fact to be proved “ ‘has a legitimate and effective bearing on the decision of the case.’ ” State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 (2007) (quoting State vs. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 [1976]). Our standard of review for materiality is de novo. Reid, 286 Kan. at 505. On probativeness, the court examines whether the offered evidence has “ ‘any tendency in reason to prove’ ” a disputed material fact. Reid, 286 Kan. at 505. This court reviews probativity for abuse of discretion. Reid, 286 Kan. at 507.
“ ‘ “Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. [Citation omitted.] When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.” ’ ” Reid, 286 Kan. at 503 (quoting State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 [2006]).
The contours of the rule in question here are found in the rape shield statute, which provides that, in a rape prosecution, “evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in any proceeding before the court” unless the court finds the evidence relevant and otherwise admissible. K.S.A. 21-3525(b).
At the preliminary hearing, J.P. testified, “We were talking, and he asked me how I felt about my virginity and how I felt about losing it.” The State asked, ‘What did you tell him?” And J.P. responded, “I told him that if I wanted to lose it I would want to lose it to someone I really cared about.” J.P. further testified that, following this conversation, she and MagaUanez got into the backseat of his car and had sex.
Shortly before trial, MagaUanez filed a sealed motion seeking a ruling on admission of the entire first page of a letter from J.P. to Magallanez. Although we recognize the sensitive nature of the letter’s content, for purposes of discussion and decision, we must include the text of the letter in its entirety.
“Malaki,
“Hey! Whats up my sexy man friend? Not to much here . . . just really bored!! . . . Okay and how you always ask me if I think about you everyday . . . well... I don’t!! I think about you every second of every minute of every of every hour of every day!! Isn’t it crazy?? I think it is!! So about you wanting a two-page note. I don’t know if I can make it that long!! . . . (lolz) Sorry for the sloppy handwriting this pencil sucks ASS!! But yea ... I can’t stop thinking about you! Do you know you have like the prettiest eyes!! OOO . . . yea!! I WANT MY POEM BOOK BACK!!! Gosh I need it I got so much stuff I need to write! Its all going through my head right now!! Yea ... So the other night on the phone was funny!! The whole andy going . . . Can I break you off? What does that meen? Can I break you off? What does that meen? Give it to you good? (lol) (Imao)!!!!! Find about the whole me not being a vergin well I didn’t tell you because I wanted to forget about it!!! It only lasted like 5 min. b4 I wanted him to stop!! It was horrible and it was THE WORST NIGHT OF MY LIFE!! You please 4 give me?? Im really sorry 4 being to you but I really don’t want anyone to know especially you!!! But that was all in the past and I don’t want to talk about it! Wow . . My handwriting really sucks today!!”
The district judge ruled that J.P.’s virginity was irrelevant to the case and that the content of the letter regarding J.P.’s previous sexual encounter was barred by the rape shield statute. Specifically, he noted that the rape charge depended upon J.P. being younger than 14, not on her behavior: “[I]t doesn’t matter what the actions of the victim were in this case because of the nature and the age of the victim.” In addition, in the judge’s view, other evidence to impeach J.P.’s credibility was available to the defense.
At this point in the case, the district judge correctly discerned that the letter was clearly probative on J.P.’s sexual history, but he also correctly ruled that evidence of J.P.’s sexual history was not material to whether she had been raped by Magallanez. Excluding any portion of the letter to prove J.P. had been sexually active before her encounters with Magallanez was appropriate because such evidence was covered by the rape shield statute and was not otherwise relevant and admissible for this purpose because of its failure to meet the materiality requirement of the relevance inquiry.
However, the district judge appears to have failed to fully grasp the secondary significance of the letter. The letter also was material and probative evidence — indeed, the best evidence the defense could imagine having — that J.P. was capable of lying and had lied in the past about her sexual conduct. This evidence was at the heart of the defense theory, i.e., that J.P. was lying about Magallanez in this case. Under these circumstances, the letter met the exception to the shield erected by the statute. It was otherwise relevant and admissible for this impeachment purpose. It was not enough for the district judge merely to observe that other impeachment evidence existed, when none could have matched the power of J.P.’s admission in her own handwriting that she had lied about her sexual history.
At trial, J.P. repeated that she had told Magallanez she wanted to lose her virginity to someone she cared about, and the State admitted a redacted form of the letter that omitted everything between “(lol) (lmao)!!!!!” and “My handwriting really sucks today!!” The State was interested in sponsoring circumstantial evidence of the intimate nature of J.P.’s relationship to Magallanez. It may also have wanted to prevent the jury from hearing that J.P. was sexually experienced, hoping to capitalize on any purity bias that could draw paternalistic sympathy. The defense made a timely objection, again seeking to admit the entire page of J.P.’s letter. But the district judge did not change his pretrial ruling.
This was error. Regardless of whether the rape shield statute could have previously been applied to prevent the defendant’s introduction of evidence of J.P.’s sexual history that was not otherwise relevant and admissible, it could no longer be applied to prevent Magallanez from impeaching J.P.’s own testimony on that subject or from demonstrating that she had lied about it before. Again, J.P.’s credibility was key. And, as Magallanez argued at trial and before this court, the State opened the door to the otherwise off-limits issue of J.P.’s virginity. Although not invoked by either party, K.S.A. 21-3525(c) makes clear that there is an exception to the statutory shield in situations such as the one before us here. If a prosecutor introduces evidence of a complaining witness’ previous sexual conduct or a complaining witness testifies to that conduct, the defense need not be silent. “If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.” K.S.A. 21-3525(c). The redacted portion of the letter would have rebutted both J.P.’s statement implying she was a virgin when she first had sex with Magallanez and impeached her testimony overall. See State v. Atkinson, 276 Kan. 920, 931, 80 P.3d 1143 (2003) (citing K.S.A. 60-420) (error to exclude evidence of complaining witness’ inconsistent statements to police about prior sexual history with defendant; once inadmissible evidence elicited, similar evidence can be admitted to rebut); compare State v. Rakestraw, 255 Kan. 35, 44-46, 871 P.2d 1274 (1994) (citing State v. Purdy, 228 Kan. 264, Syl. ¶ 2, 615 P.2d 131 [1980]) (when party seeks to introduce redacted statement into evidence, redaction must not distort its meaning; if “the complete statement is exculpatory and the redacted statement is inculpatory, we must conclude that tire redacted statement distorts the meaning of tire complete statement”); Dewey v. Funk, 211 Kan. 54, 57, 505 P.2d 722 (1973) (when party introduces inadmissible, prejudicial evidence, opposing party may introduce similar evidence as needed to remove unfair prejudice; litigant “who draws from his own witness irrelevant testimony which is prejudicial to the opposing litigant ought not to object to its contradiction on the ground of its irrelevancy”).
We thus conclude that the district judge erred in refusing to admit the redacted portion of the letter written by J.P. Rather than address whether this error requires reversal on its own, we will address it in our discussion of cumulative error below.
Aggravated Indecent Liberties with a Child as Lesser Included Offense of Rape
Counts 24 and 34 of the second amended complaint alleged that MagaUanez raped S.S. The trial court instructed the jury on aggravated indecent liberties with a child as a lesser included offense of rape for these counts. For both counts, the jury acquitted Magal-lanez of rape and convicted him of aggravated indecent liberties. MagaUanez argues that the district court lacked jurisdiction to convict him of aggravated indecent liberties because aggravated indecent liberties is not a lesser included offense of rape. See State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000). The State concedes the lack of jurisdiction.
MagaUanez' convictions of aggravated indecent liberties as to S.S. must be reversed. He cannot be retried on the greater charge, as conviction of what the juiy believed, based on erroneous instruction, was a lesser charge functions as a de facto acquittal of the greater. See State v. McCorgary, 218 Kan. 358, 368, 543 P.2d 952 (1975).
Allen-type Instruction
Magallanez argues that the giving of the following instruction before jury deliberations began was reversible error:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charges to a different juiy at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of tire opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” (Emphasis added.)
Magallanez did not object to this instruction at trial; therefore, as previously noted, we employ the clearly erroneous standard on review. State v. Ellmaker, 289 Kan. 1132, 1145, 221 P.3d 1105 (2009). Under this standard, the court must determine whether “ ‘[it is] firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred/ ” State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).
Generally, if the subject Allen-type instruction taken from PIK Crim. 3d 68.12 has been given before deliberations begin, this court has not found reversible error. See State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003); State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006). However, Magallanez takes particular issue with the emphasized language — another trial would be a burden on both sides — which has been removed by the PIK Committee since his trial.
This court has specifically addressed this language in two recent cases. In Salts, this court held that including the language was error because it was misleading and inaccurate; however, it was not reversible under the clearly erroneous standard. Salts, 288 Kan. at 266-67.
More recently, in Ellmaker, this court again acknowledged that including the challenged language was error because it was misleading and inaccurate. Again, however, the court ruled that there was no real possibility the jury would have returned a different verdict without the error. Ellmaker, 289 Kan. 1146-47.
Here, we will not consider whether the language, standing alone, constitutes reversible error. Rather, it will be a factor in our cumulative error discussion below.
Cumulative Error
Magallanez argues that, even if the individual errors discussed above do not warrant reversal, their cumulative effect does.
“Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant.” State v. Cosby, 285 Kan. 230, 250, 169 P.3d 1128 (2007) (citing State v. Anthony, 282 Kan. 201, 216-17, 145 P.3d 1 [2006]).
This court has recognized often that the federal and state constitutions do not guarantee a perfect trial, but they do guarantee a fair one, even when the defendant stands accused of unspeakably horrendous crimes. State v. Hayden, 281 Kan. 112, 124, 130 P.3d 24 (2006). This case is one of the rare ones in which cumulative error dictates reversal of the defendant’s convictions and remand for further proceedings, because it is our view Magallanez did not get a fair trial and the evidence was not so overwhelming as to overcome the error. The five errors that, viewed collectively, substantially prejudiced Magallanez and denied him a fair trial were: prosecutorial misconduct, the overbreadth of the trial court’s shotgun limiting instruction under K.S.A. 60-455, the redaction of J.P.’s letter to Magallanez, lack of jurisdiction to convict on aggravated indecent liberties as to S.S., and the inclusion of the “burden on both sides” language in the Allen-type instruction.
We have discussed already the potential danger when prosecutors embellish the burden of proof required in criminal cases, and the prosecutor committed this error by diluting the reasonable doubt standard in this case. Our prior case law also recognizes a defendant is entitled to have guilt determined solely based on the evidence introduced at trial, not other circumstances. State v. Bloom, 273 Kan. 291, 306, 44 P.3d 305 (2002); Taylor v. Kentucky, 436 U.S. 478, 485, 56 L. Ed. 2d 468, 98 S. Ct. 1930 (1978). This right was impaired by the misleading portion of the Allen instruction indicating that another trial would burden both sides. This trial was further tainted by evidentiary and argument issues; the prosecutor’s improper comment that “you trust children until you have reason not to” exacerbated the district judge’s error in barring admission of the veiy evidence proving that one of the victims had lied before about her sexual activity. Furthermore, the district judge failed to properly instruct the jury on limiting use of the evidence of Magallanez’ prior crimes. Each error, viewed indepen-dendy, would not have been enough to require reversal, but we cannot hold Magallanez received a fair trial when the errors are aggregated.
Further, while we do not discuss the propriety of consolidating the three cases for trial, we hold we must reverse all of the convictions in this case. At least the prosecutorial misconduct, Allen instruction, and shotgun K.S.A. 60-455 limiting instruction infected all three cases.
Magallanez’ lesser offense convictions of aggravated indecent liberties with a child S.S. on Counts 24 and 34 are reversed. His remaining convictions are reversed and those remaining charges are remanded to the district court for further proceedings.
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The opinion of the court was delivered by
Luckert, J.:
The biological mother of M.F. appeals a decision to terminate her parental rights, arguing the district court failed to comply with the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2006). The ICWA standard for termination of parental rights is “evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f) (2006). The mother argues the State failed to present an ICWA qualified expert witness in either the child in need of care (CINC) proceeding or in the subsequent hearing to terminate parental rights. The Court of Appeals agreed with her argument and re versed the district court. In re M.F., 41 Kan. App. 2d 927, 206 P.3d 578 (2009).
On review of that decision, we affirm the Court of Appeals, concluding that the ICWA heightens the requirements for an expert’s qualifications beyond those normally required in a proceeding governed solely by state statutes. We further hold that Kansas district courts should consider the legislative history of the ICWA and the Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979), in determining if a witness meets the heightened standard. In this case, there was no evidence that the two social workers who testified were members of the child’s tribe, had substantial experience in the delivery of child and family services to Indians, had extensive knowledge of prevailing social and cultural standards and childrearing practices within the child’s tribe, or had substantial education and experience in the area of social work. Thus, the witnesses were not qualified expert witnesses under the ICWA, and there was no expert testimony to support the district court’s decision as required by the ICWA. Because this error is not harmless, we reverse and remand for new proceedings.
Factual and Procedural Background
M.F. was bom on October 24, 2006, with special medical needs that required an extended hospitalization. His mother, S.F., was discharged after his birth; she then had no further contact with the hospital. Two weeks after M.F.’s birth, the State filed a CINC proceeding. The district court appointed a guardian ad litem (GAL) for M.F. and held a custody hearing the next day. M.F.’s alleged father, D.J., appeared at the hearing; his mother, S.F., did not. At the hearing, tíre State requested temporary custody of M.F. because of the mother’s homelessness, her possible drug use, and her abandonment of M.F. at the hospital. Regarding D.J.’s ability to provide care, the State argued that paternity was unknown and that D.J. was physically unable to care for M.F. because of his own disabilities. The district court ordered genetic testing, ordered that service be completed on the mother, and determined an emergency existed to place M.F. in the custody of the Kansas Depart ment of Social and Rehabilitation Services with the authority to find suitable placement.
Subsequent genetic testing confirmed D.J. was M.F.’s father. D.J., however, informed the court in writing that he was unable to care for M.F. and he did not contest the claim that M.F. was a child in need of care.
After the initial hearing, the State learned that M.F. might be eligible to enroll as a member of the Northern Arapaho Tribe (Tribe). Consequently, the State notified the Tribe of the proceeding. In response, the Tribe sent the State a notice of the Tribe’s intent to intervene in the case and requested notification of all hearings and other actions. The State filed the Tribe’s notice with the district court. Included with the Tribe’s notice was a document stating a Tribe enrollment technician had determined M.F. was not enrolled with the Tribe but would be eligible for enrollment.
After several continuances, the district court conducted a CINC hearing in July 2007. At the beginning of the hearing, the mother’s attorney reminded the district court that the ICWA applied. The State agreed, but reported it was unaware of whether the Tribe had been notified of the hearing. The GAL argued the Tribe had nonetheless received proper notice but failed to timely intervene. The district court determined the hearing should proceed and that the ICWA would apply.
The only witness to testify at the CINC hearing was Lindsay Courtney, a licensed social worker who was M.F.’s case manager. Courtney testified she received her bachelor’s degree in May 2006 and obtained her social work license in July 2006, approximately 3 months before M.F.’s birth in October. No other expert qualifications were offered. Courtney testified that M.F. had required surgery and had been hospitalized since May 10, 2007. M.F. continued to require specialized care because of a “trache” and feeding tubes. According to Courtney, once the mother had been discharged from the hospital, she had not called to check on M.F. and did not know M.F. had required surgery and lengthy hospitalization. Courtney indicated there was an element of danger and risk to M.F. by the mother’s not responding to the hospital because a potential caregiver would need to learn how to care for M.F. after M.F. was released from the hospital.
The State argued the evidence complied with the ICWA’s standard of proof and established that M.F. was in danger and needed immediate placement. The GAL agreed with the State and additionally argued there was good cause for departing from the ICWA’s placement preferences because neither parent was capable of handling M.F. or providing for M.F.’s special needs, no extended family members had come forward, and there was nothing more than an indication the Tribe would intervene. The mother’s attorney argued the district court should apply the ICWA standard requiring testimony by an ICWA qualified expert, and the social worker who testified was not a qualified expert. The mother’s attorney pointed out that Courtney did not testify she had ever “dealt with any Indian issues” or issues involving “Indian children.” In addition, the mother’s attorney suggested that the Tribe should be contacted because it might have resources available to meet M.F.’s needs.
The district court found the State had met its burden and the social worker had “testified appropriately as an expert in this matter.” Additionally, the district court found the evidence was clear and convincing beyond a reasonable doubt that M.F. was in danger and out-of-home placement was immediately necessary. Further, the court found that “returning the child to [the parents] is not in the child’s best interest at this time based on the child’s special medical circumstances.” Finally, the court held there was “good cause” to depart from any Indian placement because neither parent could care for the child; no family had come forward; the Tribe, despite its indication that it desired to intervene, had not done so; and there were no other viable placement options presented. In conclusion, the district court found M.F. was a child in need of care pursuant to K.S.A. 38-1502(a)(2) (repealed January 1, 2007; now K.S.A. 2008 Supp. 38-2202[d][2], with nearly identical language) and set the matter over for disposition.
In November 2007, tire district court conducted a permanency hearing to review the permanency plan and concluded the plan should be modified. In the journal entry, the court found reinte gration of the family was not a viable alternative because M.F. had been in State custody since birth, M.F. had a serious medical condition that had required him to be hospitalized for 6 months and would require further hospitalization, and there was a lack of effort by the parents.
Also in November 2007, the State filed a motion to terminate parental rights. At a pretrial hearing related to the motion, counsel for the mother expressed concern there was no journal entry recording the CINC determination and the district court had heard no qualified expert testimony, which was required for a CINC determination under the ICWA. In response, the district court reiterated that it had found in July 2007, from the bench, that M.F. was a child in need of care pursuant to Kansas statutes based on evidence that “was clear and convincing and beyond a reasonable doubt.” The court nevertheless agreed that the CINC finding needed to be journalized and directed the State to do so. Apparently, the State did not comply with the order; no such journal entry is contained in the record on appeal.
The mother then filed a motion to transfer jurisdiction to the Tribal Court of the Northern Arapaho Tribe (tribal court) pursuant to 25 U.S.C. § 1911(b) (2006). In the GAL’s written reply to the mother’s motion, the GAL argued good cause existed under the ICWA not to transfer jurisdiction of the case because the motion was untimely and it would be inconvenient to transfer the case to Wyoming, the location of the tribal court. The district court held a hearing on the mother’s motion to transfer and ultimately denied the motion.
The motion to terminate parental rights was heard in April 2008, when M.F. was approximately 18 months of age. The mother appeared in person. Before evidence was presented, the district court noted a representative from the Tribe had contacted the district court and requested to participate in the hearing by telephone. Counsel for each parent confirmed that they had talked to the Tribe representative who wanted to participate and they had advised her to contact the district court for arrangements. The district court denied the request, indicating that the Tribe’s participation by telephone would be “unwieldy and would not work.”
During counsels’ arguments pertaining to the termination of parental rights, the mother’s attorney again argued the district court had not complied with the ICWA in that, during the numerous proceedings, it had failed to malee specific findings required under the federal act. The district court disagreed, focusing on whether notice was given to the Tribe and finding the State made “an adequate record [showing] there has been compliance with all notice provisions.” Then, testimony was taken from social worker Lindsay Howes, who had been involved in M.F.’s case since M.F. was placed in State custody. Like Courtney, the social worker who testified at the CINC hearing, Howes testified that she had received a bachelor’s degree in social welfare in May 2006 and was licensed in July 2006, just months before M.F.’s birth. Howes recited the case history and the limited contacts she had with the parents. In Howes’ opinion, M.F. needed permanency through an adoptive home that could provide for M.F.’s medical care and needs. She did not believe the mother could meet M.F.’s needs, which required more than normal parenting due to M.F.’s extreme medical needs. From the time of M.F.’s birth to the termination hearing, his condition had required numerous hospitalizations and medical procedures, and he continued to require the trache and feeding tubes.
The mother testified at the termination hearing that she knew of two family members who were interested in caring for M.F. if the district court determined she could not regain custody of the child. No family members came forward, however. The mother acknowledged that she had only seen M.F. twice since her postpartum discharge from the hospital 18 months earlier. The district court ultimately entered an order terminating the parental rights of both parents.
Only the mother appealed.
Court of Appeals’ Decision
The Court of Appeals first rejected the State’s contention that the mother failed to preserve for appeal the issues concerning the district court’s failure to comply with the ICWA. In addition, the Court of Appeals rejected the mother’s claim of error relating to the decision to deny her request to transfer jurisdiction to the Tribal Court. In re M.F., 41 Kan. App. 2d at 933. These issues were not raised in the petitions for review and, therefore, are not before this court. The State and GAL do raise several arguments in their petitions for review related to the Court of Appeals’ determination that the district court failed to properly comply with substantive requirements of the ICWA. See In re M.F., 41 Kan. App. 2d at 935.
With regard to the CINC proceedings, the Court of Appeals found it problematic that the district court failed to journalize its CINC findings. Because of this lack of journalized findings, the panel determined “there is no evidence of compliance with the ICWA standards in [the CINC] determination.” In re M.F., 41 Kan. App. 2d at 934. Additionally, the Court of Appeals concluded that although the record contained a memorandum decision of the termination of parental rights, the district court’s determination was not supported by proper evidence because there was not a qualified expert witness. The Court of Appeals incorrectly identified tire social worker testifying at both the CINC and termination hearings as the same individual. Regarding that individual, the Court of Appeals noted the social worker “did not testify she was a qualified expert in determining whether an Indian child will suffer damage by continuing to remain in the custody of his parents.” In re M.F., 41 Kan. App. 2d at 934. Further, the Court of Appeals stated: “[0]ur court has determined the ICWA requires a witness to be qualified as an expert and the witness testify that evidence existed to support the State’s burden under the ICWA. [Citations omitted.] There was no such testimony in this case.” In re M.F., 41 Kan. App. 2d at 935.
The Court of Appeals concluded that the district court’s failure to comply with the requirements of the ICWA required a reversal of the district court’s termination of parental rights and a remand for proceedings meeting the ICWA’s requirements.
We granted the petitions for review filed by the GAL for M.F. and the State.
The ICWA
In Kansas, proceedings concerning any child who may be a child in need of care are governed by the Revised Kansas Code for Care of Children, K.S.A. 2008 Supp. 38-2201 et seq., “except in those instances when the court knows or has reason to know that an Indian child is involved in the proceeding, in which case, the Indian child welfare act of 1978 [25 U.S.C. § 1901 et seq.] applies.” K.S.A. 2008 Supp. 38-2203(a).
There is no dispute that the ICWA applies to this case. M.F. is an Indian child within die meaning of the ICWA, see 25 U.S.C. § 1903(4) (2006) (“ ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”). Generally, tribal courts have exclusive jurisdiction over proceedings involving children residing on or domiciled within a reservation and concurrent jurisdiction with state courts over foster care or termination of parental rights proceedings involving children not domiciled on a reservation. See 25 U.S.C. § 1911(a); Kelly v. Kelly, 759 N.W.2d 721, 724 (N.D. 2009); In re A.P., 25 Kan. App. 2d 268, 274, 961 P.2d 706 (1998). In this appeal, it is not disputed that the district court had concurrent jurisdiction. And, as previously noted, the issue of whether the case should have been transferred to the tribal court is not before us.
The ICWA is designed to
“protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .” (Emphasis added.) 25 U.S.C. § 1902 (2006).
Because the ICWA provisions are minimal standards, if a different federal law or a State’s law “provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under” the ICWA, the higher standard must be applied. 25 U.S.C. § 1921 (2006).
Qualified Expert
The minimum federal standard with regard to CINC-type proceedings — i.e., where an Indian child may be placed in foster care — is stated in 25 U.S.C. § 1912(e), which mandates that there must be a “determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Emphasis added.) Similarly, a decision to terminate parental rights must be supported by the “testimony of qualified expert witnesses,” but the State has a higher burden of proof; it must prove “beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f).
At issue here is whether Courtney and Howes, social workers for M.F., were qualified experts under the ICWA and whether their testimony satisfied the standards for the ICWA in the CINC and termination proceedings. The GAL and State argue that the Court of Appeals erred by essentially holding that to be a qualified expert witness under the ICWA, the witness must be knowledgeable in tribal customs or child welfare specifically related to Indian children and must present testimony supporting the State’s burden under the ICWA.
Standard of Review
The qualification of witnesses as experts is generally a discretionary decision for the district court. See State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008). But to properly exercise discretion, a district court must apply the correct legal standard, and the determination of that standard is a question of law subject to de novo review. See Moore, 287 Kan. at 135 (“ ‘ “A district court by definition abuses its discretion when it makes an error of law. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” ’ [Citations omitted.]”). In the context of this case, the legal standard is defined by the ICWA, which requires testimony from “qualified expert witnesses.” 25 U.S.C. § 1912(e), (f).
In interpreting federal statutes, “ ‘[o]ur task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.’ ” Negonsott v. Samuels, 507 U.S. 99, 104, 122 L. Ed. 2d 457, 113 S. Ct. 1119 (1993) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 73 L. Ed. 2d 973, 102 S. Ct. 3245 [1982]); see State v. Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009). Where the language is ambiguous, however, rules of statutory construction are employed to determine legislative intent, and courts “look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested.” Phillips, 289 Kan. at 32.
Ambiguity
The ICWA does not define “qualified expert witnesses,” leaving Congress’ intent unclear. A United States House of Representatives Report prepared in conjunction with the ICWA states that the phrase “ ‘qualified expert witnesses’ is meant to apply to expertise beyond the normal social worker qualifications.” H.R. Rep. No. 95-1386, 95th Cong., 2d Sess. 1978, at 12, reprinted in 1978 U.S.C.C.A.N. 7530, 7545. This statement indirectly instructs that the standard typically applied in Kansas CINC and termination proceedings — qualifying a social worker as an expert if he or she has a degree, is licensed, and has some contact with the CINC case — is contrary to Congress’ intent.
Yet, the legislative history does not explain the qualifications that are necessary to meet the heightened standard. Guidance has been provided, however, by the Department of the Interior, Bureau of Indian Affairs, through guidelines published to assist state courts in applying the ICWA. Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979) (BIA Guidelines). Courts have routinely consulted these guidelines to discern the intent behind the “qualified expert witnesses” requirement in 25 U.S.C. § 1912. See, e.g., Marcia V. v. State, 201 P.3d 496, 504 (Alaska 2009); Rachelle S. v. Dept. of Economic Sec., 191 Ariz. 518, 520, 958 P.2d 459 (Ariz. App. 1998); In re S.M.H., 33 Kan. App. 2d 424, 433-34, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005); see also In re H.D., 11 Kan. App. 2d 531, 535, 729 P.2d 1234 (1986) (referring to other portions of BIA Guidelines). This court has never considered this issue, but we join these other courts and consider the legislative history of the ICWA and the BIA Guidelines, 44 Fed. Reg. 67,584.
As related to the “qualified expert witnesses” requirement, the BIA Guidelines state:
“D.4. Qualified Expert Witnesses
“(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodians is likely to result in serious physical or emotional damage to the child.
“(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.
(iii) A professional person having substantial education and experience in the area of his or her specialty.” 44 Fed. Reg. 67,593.
The first two types of individuals characterized in the BIA Guidelines, subparts D.4 (b)(i) and (b)(ii), are individuals who possess knowledge of Indian customs and Indian childrearing practices. The Court of Appeals noted these provisions and concluded neither criterion was satisfied. Although the Court of Appeals did not recognize that the social workers testifying at the two hearings were different individuals, the ultimate conclusion that the criteria of subparts D.4 (b)(i) and (b)(ii) were not satisfied is correct; there was no evidence in this case that the two social workers, Courtney and Howes, could have been qualified under the first two subparts. Neither indicated that she was a member of M.F.’s tribe, had substantial experience with tribal family services, or had extensive knowledge of cultural standards and childrearing practices within M.F.’s tribe.
The GAL focuses on this conclusion by the Court of Appeals to argue that tire Court of Appeals required all experts in proceedings controlled by the ICWA to have specialized knowledge of Indian culture and society. This argument ignores the fact that the Court of Appeals acknowledged the BIA Guidelines, subpart D.4 (b)(iii), which makes no mention of knowledge of Indian culture. In re M.F., 41 Kan. App. 2d at 935. Granted, the Court of Appeals’ discussion blends the two hearings and the two witnesses, but we do not read the decision as reaching the question of whether an expert must always have expertise in Indian social and cultural matters, and conclude this issue is not before us for decision. See Supreme Court Rule 8.03 (g)(1) and (h)(3) (2009 Kan. Ct. R. An-not. 66).
The Court of Appeals’ holding was merely that: “ICWA requires a witness be qualified as an expert and the witness testify that evidence existed to support the State’s burden under the ICWA. 44 Fed. Reg. 67,593 (1979). See In re S.M.H., 33 Kan. App. 2d at 434-35. There was no such testimony in this case.” In re M.F., 41 Kan. App. 2d at 935. The Court of Appeals’ reliance on In re S.M.H. reveals that the court was focused on the witnesses’ lack of special expertise or experience.
In In re S.M.H., a different Court of Appeals panel reversed an adjudication order for failure to apply the standards of proof set forth in the ICWA. As to testimony of “qualified expert witnesses” required by the ICWA, the In re S.M.H. court looked to the BIA Guidelines for guidance as to what constitutes expert testimony in a foster care placement proceeding. At issue was the testimony of a social worker who worked at the Wamego SRS office. No qualifications other than being a social worker employed by SRS were presented, and the Court of Appeals’ panel concluded those qualifications did not meet the ICWA’s qualified expert requirement. In re S.M.H., 33 Kan. App. 2d at 434.
The Court of Appeals’ reliance on the BIA Guidelines in In re S.M.H. limited the district court’s discretion in this proceeding, meaning that to properly exercise discretion the district court should have considered the BIA Guidelines, including subpart D.4 (b)(iii). See Moore, 287 Kan. at 135. Moreover, the In re S.M.H. holding, which was adopted by the Court of Appeals in this case, is consistent with the conclusion of numerous courts in other ju risdictions that have applied the rule that a person is not a qualified expert witness under the ICWA if they do not have expertise beyond the “normal” social worker qualifications. Generally these courts glean guidance from the legislative history of the ICWA, which specifically states that the education and training should be beyond the normal social worker qualifications, and the BIA Guidelines’ language, which suggests there must be substantial education and experience. See, e.g., In re Desiree F., 83 Cal. App. 4th 460, 466, 99 Cal. Rptr. 2d 688 (2000) (ICWA requires more than showing that social worker was assigned to the case); C.E.H. v. L.M.W., 837 S.W.2d 947, 955 (Mo. App. 1992) (stating that phrase “qualified expert witness” is not defined by ICWA, but legislative history of ICWA reveals that phrase is meant to apply to expertise beyond normal social worker’s qualifications); Matter of Adoption of H.M.O., 289 Mont. 509, 519, 962 P.2d 1191 (1998) (abuse of discretion found where record was silent as to qualifications beyond being a social worker); In re Interest of Shayla H., 17 Neb. App. 436, 449-50, 764 N.W.2d 119 (2009) (abuse of discretion found where social worker had bachelor’s degree in human development, had been in position for approximately 11 years, had received regular training, and had worked with families with Native American heritage); In re Roberts, 46 Wash. App. 748, 756, 732 P.2d 528 (1987) (no abuse of discretion where witness had attended numerous workshops on Indian child welfare and was a committee member for two organizations involved in drafting ICWA); In re Vaughn R., 320 Wis. 2d 652, 676-77, 770 N.W.2d 795, (Wis. App. 2009) (social worker’s specialized knowledge as result of bachelor’s and master’s degrees in criminal justice did not relate to required showing of likely serious damage to child from continued custody by parent, and experience in monitoring conditions imposed on parents for the return of their children did not suggest something beyond normal social work qualifications); cf. Sandy B. v. State, Dept. of Health., 216 P.3d 1180, 1191 (Alaska 2009) (expert had substantial education in his specialty of psychology and, thus, met the ICWA’s heightened standard for qualification as an expert in a proceeding to terminate parental rights, where expert had earned master’s and doctorate degrees in clinical psychology); In re Interest of Phoebe S. & Rebekah S., 11 Neb. App. 919, 927, 935, 664 N.W.2d 470 (2003) (social work professor qualified to testily as expert witness under ICWA where professor had substantial education and experience in area of child welfare, bonding, and attachment and in sociological aspects of childhood, and was experienced and knowledgeable about ICWA); but see In re N.N.E., 752 N.W.2d 1, 13 (Iowa 2008) (citing Iowa statute which includes within the definition of “qualified expert witness” a “social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, spiritual leader, historian, or elder”).
These authorities support the view that under subpart D.4 (b)(iii) of the BIA Guidelines, social workers testifying in a proceeding subject to the ICWA must have substantial education and experience in the area of social work beyond the typical qualifications for the profession. See 44 Fed. Reg. 67,593.
Applying subpart D.4 (b)(iii) of the BIA Guidelines (having previously found that the other subparts were not met), neither Courtney nor Howes, the social workers who testified in this case, met the standard. Both Courtney, who testified at the CINC hearing, and Howes, who testified at the termination hearing, graduated with bachelor’s degrees a mere 5 months before M.F.’s birth and had been licensed by the state of Kansas for only about 3 months when they became M.F.’s case workers. There was no evidence of any other education, experience, or specialized expertise. By the time of the termination hearing, Howes had garnered more experience but still had practiced her profession less than 2 years. These qualifications pale in comparison to those considered in cases from other jurisdictions where appellate courts found an abuse of discretion in qualifying a social worker as an expert. E. g., In re Interest of Shayla H., 17 Neb. App. at 449-50 (11 years of case work experience insufficient). We affirm the Court of Appeals’ conclusion that neither Courtney nor Howes qualified as an expert witness as required by the ICWA.
The GAL also takes issue with the Court of Appeals’ statement that the qualified expert must “testify that evidence existed to support the State’s burden under the ICWA.” In re M.F., 41 Kan. App. 2d at 935. The GAL interprets this statement to mean that a qualified expert must offer a specific opinion as to whether or not the State’s evidence meets the burden of proof. It seems, rather, that the Court of Appeals’ statement is merely a reiteration of the ICWA standard that a decision to terminate parental rights must be based on “evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f). The expert need not opine on the ultimate issue of whether the State met its burden of proof. But the expert’s opinion must support the ultimate finding of the district court that continued custody by the parent will result in serious emotional or physical damage to the child. See, e.g., Marcia V., 201 P.3d at 506; Steven H. v. DES, 218 Ariz. 566, 572, 190 P.3d 180 (2008); State ex rel. SOSCF v. Lucas, 177 Or. App. 318, 326, 33 P.3d 1001 (2001), rev. denied 333 Or. 567 (2002).
Harmless Error Analysis
The importance of this requirement weighs heavily on our consideration of whether the lack of testimony by an ICWA qualified expert requires us to reverse the district court’s decision that M.F. was a child in need of care and the decision that his biological mother’s rights should be terminated. The State suggests we do not have to reverse those decisions because the parents clearly lacked the interest and ability to care for M.F.’s extraordinary medical needs. This argument is, in essence, a harmless error analysis.
There is support for applying a harmless error standard when a district court fails to comply with the ICWA, including decisions by our Court of Appeals. See In re S.M.H., 33 Kan. App. 2d at 441 (“nor can we conclude that this error is harmless”); In re Interest of Enrique P., 14 Neb. App. 453, 471, 709 N.W.2d 676 (2006) (failure to provide qualified expert witness was harmless when psychological evaluation and caseworkers’ court reports clearly and convincingly showed that parental custody would result in serious damage to child); In re G.F., 181 Vt. 593, 596-97, 923 A.2d 578 (2007) (failure of trial court to make specific findings under 25 U.S.C. § 1912 was harmless error when evidence overwhelmingly supported findings); Elrod, Child Custody Practice and Procedure § 3:5 (2010 Supp.) (recognizing that California case, In re Cheyanne F., 164 Cal. App. 4th 571, 79 Cal. Rptr. 3d 189 [2008], found that the errors and omissions in ICWA notice requirements are reviewed under harmless error standard); but see In re B.R., 176 Cal. App. 4th 773, 785, 97 Cal. Rptr. 3d 890 (2009) (holding that lack of notice to tribe under ICWA of notice of termination of parental rights proceeding required remand and was not harmless error);
Nevertheless, in applying the harmless error standard, it is difficult to conclude a procedural violation of the ICWA can be harmless in light of 25 U.S.C. § 1914 (2006), which provides:
“Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and tire Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.”
The expert witness provision is found in section 1912, so a lack of qualified expert witness testimony creates the potential of future invalidation of the foster care placement and termination of parental rights. Under those circumstances, the lack of a qualified expert witness cannot be considered harmless. Consequently, we conclude the error in this case requires us to reverse and remand for proceedings consistent with the requirements of the ICWA, beginning with a rehearing of the decision to determine the child is in need of care.
Other Issues
The GAL and State’s petitions for review also raise arguments and issues regarding whether the Court of Appeals erred in concluding the social workers’ opinions did not support the district court’s decision, the district court erred in failing to journalize its CINC findings, and the district court erred in failing to make required findings of “active efforts ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful” as required by 25 U.S.C. § 1912(d).
The outcome of these issues will not impact the disposition of this appeal because we have determined the district court’s decisions to place M.F. in SRS’s custody as a child in need of care and to terminate parental rights were in error and the judgment must be reversed. Because we found error in the initial phase of this case — the CINC proceeding — virtually all of the procedure will be repeated and the procedural defects alleged in this appeal are moot. Nevertheless, these issues could be addressed if they are likely to recur on remand. See, e.g., State v. Wells, 289 Kan. 1219, 1234, 221 P.3d 561 (2009). That is not the case, however. The evidence before the district court and the court’s findings regarding that evidence will necessarily differ from that before us now. Because the remaining issues are factually driven and a new record will have to be made on remand, we simply reiterate and emphasize that the ICWA requires the State and the district court to comply with the heightened standards of the ICWA and any state standard that provides greater protection to the rights of the parent. On appeal, the record of the findings must be adequate to allow an appellate court to determine compliance with all of the ICWA requirements, including those imposed by 25 U.S.C. § 1912, and any applicable state provisions. In this regard, we emphasize that the best practice is to include in a journal entry of judgment all findings necessary to support a CINC or termination of parental rights determination. See In re B.E.Y., 40 Kan. App. 2d 842, 844, 196 P.3d 439 (2008); In re Adoption of Baby Boy M., 40 Kan. App. 2d 551, 561-62, 193 P.3d 520 (2008).
The Court of Appeals’ decision reversing and remanding to the district court for further proceedings in compliance with the ICWA is affirmed. Judgment of the district court is reversed, and the case is remanded for further proceedings.
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The opinion of the court was delivered by
Luckert, J.:
Past decisions of this court have held that an insurance company may rescind an insurance contract if an insured makes fraudulent material misrepresentations when applying for an insurance policy. A different rule applies, however, if the insurance company’s agent completed the application and either knowingly entered false information or failed to ask the applicant for the information. Under those circumstances, the insurance company is estopped from rescinding the policy. This is true even if the applicant could have discovered the misrepresentation by reading the application form.
This appeal raises the question of whether the same estoppel principles apply if an insurance company’s agent does not write a false answer on an insurance application but makes fraudulent misrepresentations that lead an applicant to sign an application without knowing that the signature represents there are no disqualifying health conditions. We conclude these circumstances are comparable to a situation where an insurance agent does not ask an applicant for information used to complete an application and an insurance company could be estopped from rescinding its policy. In this case, however, the insurance company disputes that the agent made misrepresentations. Because there is sharply conflicting evidence regarding the facts surrounding the completion of tire application, we hold that the district court erred in granting summary judgment.
Facts and Procedural Background
This appeal arises from Karen Chism’s claim as the beneficiary on a life insurance policy issued by Protective Life Insurance Co. (Protective). The life insurance policy was offered to Karen and her husband Steve Chism during transactions related to the Chisms’ purchase of a new vehicle from Quality Motors of Independence, Inc. (Quality Motors). As part of the transaction, the dealership’s business manager, Dennis Urban (also referred to as “the agent”), explained that the Protective life insurance policy could be purchased and the insurance would pay off the remaining debt on the auto loan if either of them died.
According to Karen’s deposition testimony, when Urban first discussed tire life insurance he told them they qualified for the insurance because they were younger than 66 years of age. After the Chisms agreed to purchase the insurance, Urban used his computer to complete a portion of the insurance application form. Most of the information was data used in the paperwork relating to the sale and financing of the vehicle. This included basic biographical information about the Chisms (names, address, telephone number, age, gender, and Social Security numbers), details about the vehicle, and information about the loan. In addition, Urban filled in the amount of life insurance requested and the designated beneficiaries.
Urban printed out the application along with other documents relating to the purchase and financing of the vehicle. According to Karen, as Urban presented the life insurance application to the Chisms he “just told us how much the payments were going to be, how much the insurance was, and this is the Protective Life policy and sign down here.” She denied that Urban said anything about there being certain health conditions that disqualified an applicant or that he indicated there was a portion of the application regarding preexisting health conditions that they needed to review and complete.
Both Karen and Steve signed and dated the document, and Urban signed as the licensed resident agent for Protective. Karen testified at her deposition that she did not read the application before signing. In addition, when asked if Steve had read the application, she stated: “I don’t know, but I’m sure he didn’t because we were just passing the deals and we signed them and passed that other one and he signed it. He didn’t have time to read it I’m sure.”
Urban’s deposition testimony presents a sharply conflicting version of events. He testified it was not his practice to tell applicants they were qualified for insurance. In addition, according to Urban, Karen signed the documents at a different time than did Steve and both applicants had time to read the application before signing. Further, he testified he told both Karen and Steve they needed to review the application, initial where appropriate in the self-qualifying portion of the application, and then sign at the bottom.
Nevertheless, according to Karen’s deposition testimony, the Chisms were not aware of the section of the application that related to health qualifications. That section began with the heading: ‘WARNING — YOU MUST BE ELIGIBLE TO APPLY FOR INSURANCE.” Below this heading the form stated:
‘You are not eligible to apply for any insurance if you have attained age 66 as of the Effective Date, if you will have attained age 69 as of the Expiration Date of the insurance; or if you are not the named Debtor or Co-Debtor in the Schedule above.”
A paragraph followed that contained conditions of eligibility for disability insurance. Then, in a shaded box, another heading stated: “APPLICATION.” These instructions and text followed:
“CIRCLE (item) and INITIAL (line) if any item applies to you. OTHERWISE, DO NOT MAKE ANY MARKS.
“1. I am not eligible for any insurance if I now have, or during the past 2 years have been seen, diagnosed or treated for:
(a) A condition, disease or disorder of the brain, heart, lung(s), Ever, kidney(s), nervous system or circulatory system; or
(b) Tumor; Cancer; Uncontrolled High Blood Pressure; Diabetes; Alcoholism; Drug Abuse; Emotional or Mental Disorder; Acquired Immune Deficiency Syndrome (AIDS); the Aids Related Complex (ARC); or received test results showing evidence of antibodies of the AIDS virus (HIV Positive).
Debtor Initials Co-Debtor Initials
(initial here only if you have circled any item)
“2. I am not eligible for disability insurance if I now have, or during the past 2 years have been seen, diagnosed or treated for a condition, disease or disorder of the neck, back, lcnee(s) or any joint(s) or for carpal tunnel syndrome.
Debtor Initials Co-Debtor Initials
(initial here only if you have circled any item)
“The sales representative is not authorized to waive or change any of the insura-bility requirements or any provision of the Certificate.
“By signing below, I state that I have read and understand this Application and represent that I am eligible and insurable for the coverage as requested in the Schedule. I have read and understand the above Application and understand that I am not insurable for [] any coverage if I have circled (any item) and initialed application statement #1 or; disability coverage if I have circled (any item) and initialed application statement #2.1 understand this insurance is not required to obtain credit. I understand and agree that I am insured only if I have signed below and agree to pay the additional cost of the insurance. I have detached and retained the ‘INSURED’S COPY’ of this form and Certificate for my records.”
The instructions to circle and initial applicable health conditions were printed in red, as was the instruction to provide initials at the end of sections one and two if any item was circled.
The Chisms did not circle any health conditions or place initials in the applicable blanks, even though Steve suffered from diabetes. He also had a history of high blood pressure; however, the question related to uncontrolled hypertension and Karen’s deposition testimony was that Steve’s hypertension was under control at the time of the application.
About 7 months after purchasing the vehicle, Steve died. The death certificate listed the cause of death as sudden death. No underlying cause of death was indicated, but diabetes mellitus, hypertension, morbid obesity, and peripheral vascular disease were listed as “significant conditions contributing to death but not resulting in the underlying cause” of Steve’s death. Diabetes and uncontrolled hypertension were conditions that would render a person ineligible for credit life insurance if disclosed on the Protective application.
Karen submitted a claim for benefits under the policy. Protective denied the claim and rescinded the policy based on Steve’s failure to disclose disqualifying medical conditions.
In September 2006, Karen filed suit against Protective for breach of contract and against Quality Motors for negligent procurement of the policy. Ultimately, the parties filed competing motions for summary judgment. The district court granted summary judgment in favor of Protective and Quality Motors. The court found that Quality Motors “does not review the medical interrogatories section” with applicants, but the Chisms had a duty to read the application, which they failed to do, and “unknowingly enrolled themselves into a credit life insurance program they were not eligible for.” Because of the Chisms’ duty to read and Steve’s disqualifying health conditions, the court held that Protective’s subsequent denial of coverage did not constitute a breach of the insurance policy and that Protective had rightfully rescinded the contract. Moreover, because the application required an eligibility determination — or self-disqualification — by the applicants, the district court stated Quality Motors was not negligent in its presentation of the application to the Chisms.
Karen appealed, and the Court of Appeals affirmed in Chism v. Protective Life Ins. Co., 40 Kan. App. 2d 629, 195 P.3d 776 (2008). Regarding the issue of rescission, the Court of Appeals concluded the Chisms made material misrepresentations on the insurance application that barred any recovery under the policy. The Court of Appeals also concluded the policy language specifically negated Steve’s eligibility for coverage due to his health conditions, and the policy clearly denoted that the agent had no authority to waive Protective’s insurability requirements. Chism, 40 Kan. App. 2d at 634. In addition, the Court of Appeals noted it was uncontroverted that the Chisms knew about Steve’s health conditions, so even if the failure to disclose those conditions was not, as described by Karen, “deliberate deceit,” Protective had the power to rescind the policy after misrepresentations were made with “reckless disregard” for the truth. Chism, 40 Kan. App. 2d at 636.
The Court of Appeals also rejected Karen’s argument that Protective waived its right to rescind the insurance policy. The Court of Appeals pointed out, inter alia, that Karen was bound by the provisions in the application regardless of her failure to read or understand its terms, unless her execution of it was the product of fraud, undue influence, or mutual mistake. The Chisms were, according to the Court of Appeals, not able to attribute the misrepresentations to the agent because the agent did not complete the medical portion of the application and the Chisms had “the opportunity and duty to correctly complete the portion of the application form relating to health issues.” Chism, 40 Kan. App. 2d at 635-36. The lack of complicity or fault of the agent, according to the Court of Appeals, distinguished this case from two Kansas cases and cases from other jurisdictions cited by Karen. The Court of Appeals concluded that Protective was entitled to summary judgment. Chism, 40 Kan. App. 2d at 637.
Next, the Court of Appeals addressed Karen’s negligent procurement claim in which she alleged that Quality Motors failed to properly present and record the medical inquiries on the application. The Court of Appeals upheld the order granting Quality Motors summary judgment, holding there was no evidence that Urban, an employee of the dealership, was an agent for the Chisms or owed any legal duty to the Chisms “when it came to their obligation to read, understand, and accurately respond to the inquiries made” about their health in the application. Chism, 40 Kan. App. 2d at 639.
Finally, the Court of Appeals concluded the district court did not abuse its discretion when it quashed subpoenas for depositions of certain witnesses, excused the defendants from producing certain documents, and struck a witness’ affidavit. Chism, 40 Kan. App. 2d at 640-42.
Karen filed a petition for review in which she raised only issues relating to her breach of contract claim against Protective and its rescission of the insurance contract. She did not discuss the other issues considered on direct appeal relating to negligent procurement and discoveiy orders. We granted the petition, and our jurisdiction arises from K.S.A. 20-3018(b).
After Karen’s petition for review was granted, she filed a supplemental appellate brief in which she asserted that she was not “waiving” review on all issues decided by the Court of Appeals. Nevertheless, under the rules relating to appellate procedure, this court’s consideration of any issue considered by the Court of Appeals in a civil case is limited to the issues raised in the petition for review or fairly included therein. Supreme Court Rule 8.03(a)(5)(c) (2009 Kan. Ct. R. Annot. 67); cf. Supreme Court Rule 8.03(c) (2009 Kan. Ct. R. Annot. 68) (discussing issues raised in responses to petitions for review). The appeal before this court is limited, therefore, to the issues relating to the entry of summary judgment on Karen’s claim against Protective for breach of contract and Protective’s rescission of the policy. The Court of Appeals’ decision to affirm summaiy judgment in favor of Quality Motors and its ruling on the discovery issues are not impacted by our decision.
Regarding her claim that Protective breached its contract, Karen argues in her petition for review that the Court of Appeals (1) failed to review the record in the light most favorable to Karen; (2) erred by distinguishing this case from Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P.2d 798 (1968), and Cooley v. National Life & Acc. Ins. Co., 172 Kan. 10, 238 P.2d 526 (1951); and (3) erred by holding that the failure to read an application for credit life insurance containing self-disqualifying medical inquiries is sufficient proof of fraudulent misrepresentation justifying rescission.
Standard of Review/General Principles
The standard for summary judgment is well known:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with die affidavits, show that there is no genuine issue as to any material fact and that the moving party is enütíed to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied.’ [Citation omitted.]” Nelson v. Nelson, 288 Kan. 570, 578, 205 P.3d 715 (2009).
Karen’s arguments focus on the requirement that facts be considered in the light most favorable to the party opposing the summary judgment. We will discuss the areas where Karen argues the Court of Appeals failed to apply the correct standard of review in the context of our discussion of the Court of Appeals’ legal conclusions.
These legal conclusions relate to the parties’ competing claims regarding who is responsible for the failure to disclose Steve’s diabetes (and perhaps other disqualifying health conditions) on the insurance application. The Chisms claim it was Urban’s misrepresentations that caused the error and they never intended to make any representations regarding health conditions, much less a false representation. On the other hand, Protective argues Urban had no responsibility for the error and the Chisms committed fraud.
As we consider tírese competing arguments, three general principles further define our standard of review: (1) Fraud is never presumed; (2) fraud must be established by clear and convincing evidence; and (3) the existence of fraud is normally a question of fact. Alires v. McGehee, 277 Kan. 398, 403, 85 P.3d 1191 (2004).
Protective’s claims are based on the general rule of law tíiat an insurer has the right to rescind a policy ab initio for fraudulent misrepresentation in the application process. American States Ins. Co. v. Ehrilich, 237 Kan. 449, 701 P.2d 676 (1985). To establish fraud in this context, Protective must establish: (1) There was an untrue statement of fact made by the insured or an omission of material fact, (2) the insured knew the statement was untrue, (3) the insured made the statement with the intent to deceive or recklessly with disregard for the truth, (4) the insurer justifiably relied on the statement, and (5) the false statement actually contributed to the contingency or event on which the policy is to become due and payable. See K.S.A. 40-2205(C) (imposing fifth element); Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 260, 978 P.2d 922 (1999) (analyzing claim of fraud by silence); Waxse v. Reserve Life Ins. Co., 248 Kan. 582, 586, 809 P.2d 533 (1991) (stating elements one to three as stated here but stating the fourth element as “another party justifiably relied on the statement and acted to his injury and detriment”); Ehrlich, 237 Kan. at 452 (same); Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 680, 56 P.2d 76, modified on other grounds 144 Kan. 224, 58 P.2d 1131 (1936) (recognizing fraud to be a known misrepresentation or a nondisclosure).
Other than the legislative refinement of the fifth element, these elements parallel those of a fraud claim generally. See Alires, 277 Kan. at 403 (stating elements of fraud as “an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or with reckless disregard for the truth, upon which another party justifiably relies and acts to his or her detriment”)-
Estoppel
The primary thrust of Karen’s petition for review is her argument that Protective is estopped from rescinding the contract because of its agent’s wrongdoing. In response, Protective does not deny that Urban acted as its agent, but it denies that Urban is in anyway responsible for the false statement on the application. Protective’s view, which was adopted by the district court and the Court of Appeals, is that Protective can be estopped only if Urban placed false information on the application. To support this position, Protective cites Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P.2d 798 (1968), and Cooley v. National Life & Acc. Ins. Co., 172 Kan. 10, 238 P.2d 526 (1951), which were both discussed by the district court and the Court of Appeals.
In the earliest of these cases, Cooley, 172 Kan. 10, a father discussed purchasing life insurance for his three daughters with a life insurance agent and the agent’s supervisor. According to the father, he explained he was not interested in purchasing policies unless he could do so for the benefit of all of his daughters and he was concerned that one diabetic daughter would not qualify for coverage. He told the agent that the diabetic daughter had not seen a doctor for some time and was “getting along all right.” The agent and supervisor asked to see the daughter, so the father sent them to the family home and indicated the mother could complete the application. Once at the home, the agent filled out the application, asking the mother questions and completing the application with her answers. According to the mother, when the agent reached a question about diabetes, the agent indicated the father had already answered the question. The mother testified she signed the application but did not read it. The life insurance agent and his supervisor disputed the father s and mother s testimony by asserting the mother had answered “no” to the question about diabetes and that they had no knowledge one of the applicants had that health condition.
This court affirmed the district court’s determination that the disputed facts created a jury question, stating:
“The rule in this state is that an insurance agent in making out an application for insurance acts as the agent of the company and not of the applicant, and if the applicant makes truthful answers to the questions propounded, the company cannot generally take advantage of false answers entered by the agent contrary to the facts as stated by the applicant. . . . The rule stated represents the great weight of authority. [Citations omitted.] No reason is suggested, and we know of none, why an applicant for insurance, who is not asked a question contained in the application, but to which an agent enters a false answer, is not entitled to a rule as favorable as that stated.” Cooley, 172 Kan. at 15-16.
Subsequently, this court considered similar facts in Schneider, 200 Kan. 380. There, two insureds testified that an insurance agent filled in an application without consulting with or directing questions to the applicants. In sharp conflict with this testimony, the agent testified he filled out the application with the specific answers given by the applicants.
The court discussed the holding in Cooley, on which the Schneider court relied, and provided additional authorities and explanation for the holding by stating:
“The rule adhered to by this court in Cooley is stated in 17 Appleman, Insurance Law and Practice § 9401:
‘An insurer is estopped from setting up a defense of fraud or negligence on the part of the insured in answering application questions, where such fraud or negligence was on the part of the insurer’s agent. This rule applies with particular force where the false answers are inserted by the agent without the knowledge of the applicant, regardless of whether such statements be considered representations or strict warranties. Thus, where an application is prepared without even consulting or interrogating the insured, and the insured had no knowledge of the making of such statements, much less their verity, an estoppel is certain to arise.
‘Likewise, an insurer waives or is estopped to rely on representations contained in an application where the agent fills in the application without propounding any of the questions to the insured. Where an agent assumes the responsibility for answering the questions asked in the application, and answers falsely or incorrectly without the applicant having made any statements in connection therewith or knowing the manner in which they were answered, the insurer will be estopped to claim that the representations were false or incorrect. The insured cannot be called upon to bear the consequences, where the application is filled in by the agent from his own knowledge or from information in his possession.’ ” Schneider, 200 Kan. at 395.
Under the facts in Schneider, where the applicants testified the agent completed the application without asking the applicants for the necessary information, this court held the insurer could be estopped from rescinding the application under these general rules.
Because there was conflicting testimony regarding whether the agent asked the questions, this court further held that the district court erred in granting summary judgment, stating: “In cases where the truth of the representations or the facts surrounding the taking of the application are in dispute the questions presented are for a jury’s determination.” Schneider, 200 Kan. at 393.
Karen argues the same conclusion applies in this case because questions of fact exist regarding the taking of the application. She complains the district court and the Court of Appeals ignored the factual questions and resolved the conflicting testimony in favor of Protective. For example, she points to the Court of Appeals’ statement that Urban “handed the application to the Chisms to complete, review, and sign.” Chism, 40 Kan. App. 2d at 630. She suggests the evidence, when viewed in the light most favorable to her, establishes: (1) Urban completed the form or at least led the Chisms to believe he had; (2) Urban did not give any indication they should review the information or the questions; (3) Urban told the Chisms they qualified because of their age, leaving the impression there were no additional qualifying conditions; and (4) Urban pointed out where they should sign at the bottom of the form without pointing out the blanks for their initials in the portion of the form relating to health qualifications.
In addition, she argues that had the district court and the Court of Appeals considered the evidence in her favor, neither court would have distinguished either Cooley or Schneider. To test this assertion, we will examine the basis on which each of those courts distinguished those cases.
First, the district court found Schneider and Cooley distinguishable in that Urban'did not exert “the kind of control over the application process contemplated in” those two decisions. The district court noted that in those cases “the agent either knowingly made a false statement on the application or the insurance company itself failed to ask the appropriate questions. Neither occurred in the case at bar.” Similarly, the Court of Appeals concluded that Urban filled out only background facts, not facts related to information about material health conditions — information which was to be supplied by the Chisms. The Court of Appeals concluded this distinguished the prior cases because, as the court explained:
“We are not confronted with a situation where the insured gives the procuring agent a verbal answer to a health question on the application and the agent writes down something entirely different on the application. Indeed, Karen claims that [the agent] failed to question them at all about their health conditions.” Chism, 40 Kan. App. 2d at 635.
Karen does not dispute the factual component of this analysis, but she does question the legal conclusion that the agent’s alleged misrepresentations cannot estop Protective. Karen argues that to apply an estoppel rule only if the agent physically writes on the application insulates an insurer from the consequences of its agent’s fraud simply because of the manner in which the application’s health inquiry is phrased. She urges us to hold that an agent’s fraud estops an insurance company from rescinding a contract if the agent’s fraud causes the submission of an inaccurate application, as long as the applicant acted in good faith.
We agree with Karen’s argument. If the facts are accepted in the light most favorable to Karen, Urban led the Chisms to believe he had completed the application and had obtained all of the necessary information. Further, his misrepresentation that the Chisms qualified for the insurance because of their age suggested there were no health qualifications. Then, according to Karen, Urban told them to sign on the bottom of the form without directing their attention to the disqualifying conditions. This is significant in light of Protective having written the application so that an applicant who signs the form without circling a disqualifying health condition effectively answers, “No, there are no disqualifying medical conditions.” Under those circumstances, an agent who directs the applicant to sign the form, knowing the applicant is unaware of and has not answered potentially disqualifying medical inquiries, has assumed responsibility for answering the questions and has caused the submission of a false answer. The legal effect of this action is not different from the effect of an agent not asking qualifying questions of the applicant and submitting a false answer, which was the situation in Schneider.
Nevertheless, the Court of Appeals also concluded there was no evidence to establish that the agent knew the Chisms did not read the application. The Court of Appeals stated: “Urban testified that the Chisms did not immediately sign the document when he handed it to them. Karen had it before her for an adequate time for her to read it before signing it. Urban stated, ‘She did not do anything to my indication that she did not read it.’ ” Chism v. Protective Life Ins. Co., 40 Kan. App. 2d at 634. However, as Karen points out, when Urban was asked if he saw Karen read the application, he replied that he could not answer that question. In addition, Karen’s testimony was that the Chisms were passing the various documents between each other and signing without taking time to read any document. Her description of the transaction controverts Urban’s version and creates an issue of fact regarding whether Urban accepted responsibility for answering the health qualification questions when he allegedly directed the Chisms to sign the form without review.
Even so, the Court of Appeals and the district court concluded the Chisms had a duty to read thé application, which prevented their rebanee on the agent’s actions. As the Court of Appeals noted, Kansas has long adhered to the general rule that an insurance applicant has a duty to understand the contents of a policy application before signing it and to answer all questions fairly and truthfully. Yet, when this rule is stated it is generally qualified by the phrase “absent fraud, undue influence, or mutual mistake.” See, e.g., Albers v. Nelson, 248 Kan. 575, 579, 809 P.2d 1194 (1991); Ridgway v. Shelter Ins. Co., 22 Kan. App. 2d 218, 225, 913 P.2d 1231, rev. denied 260 Kan. 995 (1996).
Karen invokes the exception, arguing Protective cannot be relieved of its agent’s misrepresentations because of her and Steve’s failure to read the form. The Schneider court discussed this point, noting there was a split of authority with some courts imposing a duty to read a contract even if an insurance agent commits fraud. The Schneider court opted for what it termed the more “lenient” view, however, stating:
“ ‘An applicant has no absolute duty to read a policy in anticipation of fraud or mistake of an agent, so that even though the application contains a warranty that all answers to questions were correct, this has been held only a warranty that the answers actually made by the insured were correct, and not that the agent had correctly transcribed them. Nor would the fact that the application recites that the falsity of answers bars recovery require the insured to read his application to see if the agent correctly wrote his truthful answers therein. The mere fact that an applicant signs the application in good faith without reading it has been considered not such negligence as would render him liable for the agent’s fraud or mistake in inserting answers false in character, and would not preclude recovery under this rule. Such failure to read would not, therefore, necessarily be a bar to recovery.
“ ‘An insured has a right to presume that the policy received by him is in accordance with his application, and his failure to read it will, under this rule, not reheve the insurer or its agent from the duty of so writing it...'" Schneider, 200 Kan. at 396 (quoting 17 Appleman, Insurance Law and Practice, § 9406, pp. 31-32).
The Schneider court concluded the insurance company could not base its claim for rescission on the applicant’s failure to read the application and discover that the agent had incorrectly completed it. Schneider, 200 Kan. at 397. In both Cooley and Schneider, the applicant or the applicant’s authorized agent had the opportunity to review and sign the application. That ability to review the application did not remove the issue from the jury’s consideration.
Similarly here, if Karen’s version of the facts are accepted, the Chisms did not have a duty to read the application to determine whether Urban misrepresented to them the qualification criteria for the insurance, causing them to believe there were no qualifying questions for them to answer. Hence, Karen has created questions of fact and, if a jury were to accept her version of events, Protective could be estopped. Given this conclusion under Kansas law, we need not consider the out-of-state authorities cited by Karen.
Rescission
On the other hand, if a jury were to accept Urban’s version of the facts, Protective would not be estopped from asserting the Chisms misrepresented Steve’s health condition and the jury would have to consider whether Protective met its burden of proving by clear and convincing evidence that the Chisms committed fraud. Karen argues there are questions of material fact on many of the elements of fraud, including the nature of the misrepresentation, whether the undisclosed health conditions actually contributed to Steve’s death, and whether the misrepresentation was intentional or made with reckless disregard for the truth. As Karen notes, the element of their intent is intertwined with the question of whether Urban misled them and whether they reasonably relied on his misrepresentations. Because issues of fact exist on this one element, a jury question exists as to whether there was fraud. The jury must consider each element and determine if the burden of proof has been satisfied.
Nevertheless, the parties’ arguments raise legal issues we will address to provide guidance on remand.
Intent/Duty to Read
The first issue relates to Karen’s argument that an intent to deceive cannot be implied from a mere failure to read an insurance application. In making this argument, Karen appears to interpret the Court of Appeals’ decision as adopting a “simple negligence” standard for fraud. We do not read the Court of Appeals’ decision in this way. Nevertheless, her arguments raise the question of what level of intent is required to establish a misrepresentation or omission that would justify the rescission of an insurance contract.
Several states have adopted the rule that an insurance policy may be rescinded based on a negligent misrepresentation. See, e.g., John Hancock Mut Life Ins. Co. v. Weisman, 27 F.3d 500, 504 (10th Cir. 1994) (New Mexico law); Munroe v. Great American Ins. Co., 234 Conn. 182, 188 n.4, 661 A.2d 581 (1995); Curtis v. America Community Mut. Ins. Co., 610 N.E.2d 871, 874 (Ind. App. 1993). Kansas has not adopted this rule, however. Rather, Kansas courts have consistently recognized that an insurer may not rescind a policy on a mere negligent misrepresentation or omission, except where contracting, sophisticated commercial entities agree that standard should apply. E. g., National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 261, 225 P.3d 707 (2010); Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 680, 56 P.2d 76, modified on other grounds 144 Kan. 224, 58 P.2d 1131 (1936).
On the other hand, Kansas has recognized that an insurer may rescind a life insurance policy after a misrepresentation is made on the insurance application with reckless disregard for the truth. See Alires v. McGehee, 277 Kan. 398, Syl. ¶ 3, 701 P.2d 676 (1985); Waxse v. Reserve Life Ins. Co., 248 Kan. 582, 586-87, 809 P.2d 533 (1991); Tetuan v. A.H. Robins Co., 241 Kan. 441, 467, 738 P.2d 1210 (1987); Scott, 143 Kan. 678; Sharrer v. Insurance Co., 102 Kan. 650, 652, 171 Pac. 622 (1918); see also St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968) (stating that reckless disregard for the truth in libel claims requires that defendant “in fact entertained serious doubts as to the truth” of the statement made); Restatement (Second) of Contracts § 164 (1981) (when party induced to enter contract by fraudulent or material misrepresentation upon which party justified in relying, contract voidable).
In addition, Karen argues the Court of Appeals, whether using a simple negligence or reckless disregard for the truth standard, erred in holding the standard is met if an insurance applicant signs an unread application. She argues this holding is contrary to Schneider and Cooley.
While Schneider and Cooley hold an insurance company cannot rely on the failure to read as a defense to an agent’s fraud, they do not excuse an applicant from reading an application if there is no fraud, undue influence, or mutual mistake. Indeed, this court has previously stated the “failure to obtain a reading and explanation of [a contract before signing] is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.” Maltby v. Sumner, 169 Kan. 417, Syl. ¶ 5, 219 P.2d 395 (1950). This holding is consistent with cases from other courts establishing that signing a document without reading it is evidence of a reckless disregard for the truth of statements contained in the document. See United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir.), cert. denied 414 U.S. 912 (1979) (suggesting that defendant could be convicted of knowingly making false statement on firearms registration application, even if he did not actually read the form he signed and no questions were read to him, if by signing statement without reading it he acted with reckless disregard of whether the statements made were true or with conscious purpose to avoid learning the truth); United States v. Squires, 440 F.2d 859, 864 (2d Cir. 1971) (defendant can be convicted of “ ‘knowingly ” making false statement by signing form without reading it, if he deliberately avoided reading it and, if he had read it, he would have been “ ‘aware of a high probability’ ” that he was prohibited from obtaining firearm).
Hence, if the jury were to accept Urban’s version and conclude he did not commit fraud, the jury could determine the Chisms acted with a reckless disregard for the truth when they failed to read the application. Again, resolution of the issue requires the weighing of the conflicting evidence regarding the facts surrounding the taking of the application. Because of the disputed facts, the district court erred in granting summary judgment.
Materiality
Finally, we consider whether the Court of Appeals applied the wrong standard to determine the materiality of die alleged misrepresentations regarding Steve’s health. The Court of Appeals stated:
“The test of the materiality of a false statement in an application for life insurance is whether the misrepresentation could reasonably be considered to affect the insurer s decisions regarding the degree or character of the risk it is being asked to underwrite, whether to issue the policy, or what premium it should charge for the policy. See Schneider v. Washington National Ins. Co., 200 Kan. 380, 397, 437 P.2d 798 (1968). The same test applies in considering a false statement in an application for life insurance.” Chism, 40 Kan. App. 2d at 634.
Although this statement accurately reflects the holding in Schneider, the test as stated in Schneider was derived from a prior version of K.S.A. 40-2205(C), which provided an “acceptance of the risk” standard for measuring materiality. The current standard for determining materiality of the representation is stated in two statutes.
First, K.S.A. 40-2205(C) states:
“The falsity of any material statement in the application for any policy covered by this act may not bar the right to recovery thereunder unless the false statement has actually contributed to ¿he contingency or event on which the policy is to become due and payable.” (Emphasis added.)
Likewise, K.S.A. 40-418, found in the general provisions relating to life insurance companies, utilizes the “contributed to” language and provides:
“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.” (Emphasis added.)
See Andreas, Misrepresentation In Insurance Applications: Kansas Law, 62 J.K.B.A. 22, 24 (May 1993) (“Under Kansas law, an insured may He or conceal material information in an application for life or health insurance and still recover benefits, as long as the matter misrepresented did not contribute to the loss.”); 44 C.J.S. Insurance § 498, p. 611 (under statute, “a disease existing at the time of the issuance of the policy must cause or contribute to the insured’s death to excuse the insurer from liability”); 45 C.J.S. Insurance § 1064, p. 547 (“Where a statute provides that no misrepresentation will avoid the policy unless the matter misrepresented actually contributed to the death of the insured, such a statement is no defense to an action on the policy, even though willfully false.”).
Applying K.S.A. 40-2205(C) and K.S.A. 40-418 to the present case, the jury must determine whether Steve’s diabetes (and perhaps other conditions if it is determined those conditions should have been disclosed) “actually contributed to” his death for which payment under the policy is sought.
Even though the Court of Appeals stated materiality was to be tested by whether the insurer accepted a risk, we note that the court actually applied the “actually contributed to” statutory test. In doing so, the Court of Appeals concluded the treating physician “did not negate the notion that Steve’s medical conditions contributed to his death.” Chism, 40 Kan. App. 2d at 633. Karen asserts this conclusion is another example of the Court of Appeals’ and district court’s weighing of the evidence. She points to her testimony that Steve’s hypertension was controlled at the time of the application. Further, she points to testimony of Steve’s treating physician, in particular his opinion that the cause of Steve’s sudden death cannot be determined. She submits that this testimony places into question whether Protective can prove by clear and convincing evidence that diabetes or hypertension were material to the cause of death. Again, these factual questions make summary judgment inappropriate.
The Court of Appeals’ decision on the issues before this court is reversed. The decision of the district court on the issues before this court is reversed and remanded.
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The opinion of the court was delivered by
Beier, J.:
This is a direct appeal from defendant Mary Ann
Wright’s conviction of rape. Wright argues that there was insufficient evidence to convict her of rape by force or fear and that the district court erred in admitting evidence under K.S.A. 60-455.
Factual and Procedural Background
Wright provided massages out of her home. She was primarily self-taught, learning with the aid of books and videos from the library. Wright’s clients included J.L., age 21.
On the day the rape allegation arose, J.L. arrived at Wright’s home for a massage. Wright asked J.L. if she would be interested in a full body massage. When J.L. had agreed, J.L. disrobed and covered herself with a beach towel. She first lay face down. Wright massaged J.L.’s back, buttocks, legs, and feet and then asked J.L. to roll over. J.L. felt uneasy as Wright began massaging the top of her breasts but assumed it was part of the full body massage. J.L. dozed off as Wright began massaging her calves and feet. When she woke up, she saw Wright’s hand and arm between her legs and felt Wright’s fingers moving in and out of her vagina. J.L. became tense; Wright stopped; and J.L. left.
J.L. did not contact the Leon Police Department until the next day. The police referred her to the Butler County Sheriff s Department.
J.L. met with a sheriffs deputy and informed him that she fell asleep during the massage, woke up, and discovered Wright penetrating her vagina with two fingers. J.L. said that “she was startled at first and afraid. Then she got mad and felt like getting up and hitting [Wright]. But she was too afraid and [Wright] said something to the effect that she just wanted her to experience the full massage . . . .[J.L.] said that... it paralyzed her [with fear].”
J.L. also mentioned that another of Wright’s clients had told her that Wright asked an inappropriate question during a massage. The second client eventually told the sheriff s deputy that Wright had offered her a genital massage.
As the investigation continued, a female detective with the Sedgwick County Sheriff s Office scheduled a massage by Wright. Eventually, this detective would testify at trial about her experience with Wright. The detective said that the massage was significantly different from other massages she had received. Wright had removed a towel so that the detective lay on the massage table undressed and uncovered. In addition, Wright made her uncomfortable with certain of her motions during the massage of the detective’s buttocks and touched the detective’s breasts with her palm. According to the detective, Wright also offered her a genital massage.
A search of Wright’s home eventually resulted in seizure of several pornographic videos and books. During the search, the Butler County sheriffs deputy informed Wright of her Miranda rights. Wright agreed to talk to the deputy, confessing that she had offered genital massages to some of her clients. Wright said that “[f]or a female [a genital massage] was a massage of the outer lips and also the vagina .... On a male ... it was a massage of the penis until ejaculation.” Wright also admitted that she may have slipped and accidentally inserted her finger into J.L.’s vagina.
A second Butler County sheriff s investigator also interviewed Wright, who told him that a “genital massage is when . . . the male penis and the woman’s vaginal area was massaged.” Wright again admitted that she had offered genital massages to her clients but said that none had accepted. She initially denied inserting her fingers into J.L.’s vagina but later said that she had used vegetable oil for J.L.’s massage, that the oil was slick, and that her finger may have slipped into J.L.’s vagina while she was massaging her thigh. Wright also admitted that she visited pornographic sites of nude women and acknowledged that she was bisexual, but Wright said she had never acted on her sexual attraction to women. Wright said she had become sexually excited while giving her first few massages but had since “been able to block that out.”
Wright then wrote a statement about her encounter with J.L.:
“I accidentally slipped my index finger into the outer vagina about one half inch when massaging [J.L.] May of 2005. I was massaging her inner thighs when this occurred. It was not intentionally done. And I am very sorry it happened .... I did not do this on purpose, as I am not doing massages for sexual gratification. I am doing it for others to help relieve stress, tension and [to promote] general good health.”
The State charged Wright with one count of rape. The State filed a pretrial motion seeking to admit evidence of (1) Wright’s offers of genital massage to the second client and the Sedgwick County sheriff s deputy, and (2) her expression of her sexual attraction to other women. The State argued this evidence was relevant to prove absence of mistake or accident under K.S.A. 60-455. During a hearing on the motion, the State also sought admission of Wright’s statement that she had visited pornographic websites to prove Wright’s state of mind and intent. Wright argued that the evidence was highly prejudicial and irrelevant. The district judge ruled in favor of the State, saying:
“[I]n the case before the court tire defendant does not deny the intercourse but asserts mistake or lack of intent to rape. Mistake or accident denotes an honest error. This defense is completely consistent with the [State v. Davidson, 31 Kan. App. 2d 372, 379-82, 65 P.3d 1078 (2003),] rationale for admitting K.S.A. 60-455 evidence when, in fact, it is proper to be admitted.
“This court further finds (1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed material fact; and (3) the probative value of the evidence outweighs its prejudicial effect for the reasons and rationale [as] set forth in the State’s memorandum and brief pursuant to the applicable case law therein.
“Finally, pursuant to [State v. Morgan, 207 Kan. 581, 485 P.2d 1371 (1971)], this Court finds the prior act is admissible, irrespective of a conviction.”
During trial, J.L. testified about her meaning when she described “dozing off’ during her massage:
“Q. [Y]ou had never fallen asleep during these [massages]?
“A. I would doze off on occasion.
“Q. When was that?
“A. Any time I would be relaxed enough to close my brain — my brain was relaxed. I couldn’t call it sleeping. I wasn’t in a complete deep sleep like I do every night when I go to bed.
“Q. So the — but you still you went airead and fell into a deep sleep the first time you are getting this full body massage?
“A: There is a difference between sleeping maybe five minutes or so and sleeping eight hours.
“Q: There was a — there was a level of sleep you were in? Were you asleep or not asleep during this full body massage?
“A: That’s — I dozed off to sleep. It was not a very deep sleep like I am when I sleep a full eight hours.”
The second client to whom investigators had been directed by J.L. testified that Wright had informed her during a massage that “she could do neck, shoulders, back, full body, genitals.” She also testified that she had stopped going to Wright for massages because Wright became “scary,” once calling her 20 times in a 6-hour period. Another day, the client testified, her caller identification system showed 28 calls from Wright. Wright also had left notes on the second client’s car and had asked children to bring notes to the client’s workplace.
Wright testified in her defense. She addressed one of the videos seized during the search of her home, saying she had ordered it from a catalog and did not realize it was erotic:
“A. I still didn’t realize [it was erotic] until you are all talking about it up here. I looked at the title and it says Tantric Massage.
“Q. Okay and [the video] includes hand massages, if you will, of males to the point of ejaculation, correct?
“A. Yes.
“Q. And it includes genital massages, [including] penetration to the point of climax or orgasm, correct?
“A. Yes.
“Q. And you don’t consider that sexual?
“A. It is sexual, but it was in the massage and I thought that was part of the massage. Having never had a massage myself I did not know.”
Wright also asserted that she had made her statements to the Butler County sheriffs investigator under stress:
“A. . . . [The investigator] started talking about did I touch [J.L.] accidentally? And I said, I don’t think so. I don’t know. Because it had been [a]while since I had given [J.L.] a massage and I was really in a state of shock.
“A. [The investigator] said, now think about it. I said, well, I might have had, because I was not sure. And he kept at me and saying, well, are — you have to be really sure. And I [sat] there maybe two minutes. I said, well, I did apparently touch [J.L.] accidentally.”
Wright also testified that she had identified herself as bisexual but had never acted upon her sexual attraction to other women and had not obtained sexual gratification through her massage practice. She tried to explain why she had not completely covered the Sedgwick County sheriff s deputy with a towel and said she had offered her a genital massage:
“A. I had a towel there. And I have found out since that I should have kept [the deputy] covered. My massage material that I had showed totally nude without cover.
“A. I thought that was the way it should be done. I hadn’t learned any better.
“Q. Did you at any point have a discussion with [the deputy] about a genital massage?
“A. Yes, I did.
“Q. And how did that come up?
“A. Well, [the deputy] was laying on the table and I said, well I’m finished. I kind of chuckled and said, unless you want a genital massage. I was just . . . smarting off. I really didn’t mean to give her a genital massage. I have never given one. I have offered them to a couple people. But it’s not — not something I would solicit that way.”
When Wright testified about J.L.’s massage, she said:
“A. Well, when I accidentally touched her on the genitals with my finger and I was, oops, sorry, there was no response whatsoever. And I realized then that she was asleep.
“Q. So what did you do?
“A. I basically quit the massage. Went over and sat at the computer and played games until she woke up, which was about 15 minutes later.”
The defense argued that the instructions to the jury should not permit consideration of whether Wright raped J.L. through force or fear, because the evidence was insufficient on that alternative means of committing the crime. The State argued that J.L.’s statement that she had been paralyzed with fear once she woke up and realized what was happening could establish this element of the crime.
The district judge decided that the jury should be instructed on alternative means of committing rape- — -by force or fear or by unconsciousness. Instruction No. 5 thus provided that Wright could be convicted if “the act of sexual intercourse was committed without the consent of J.L. under circumstances when: (a) she was overcome by force or fear; or (b) she was unconscious or physically powerless.”
The district judge also gave a K.S.A. 60-455 limiting instruction, explaining that evidence “tending to prove that the defendant committed bad acts other than the present crime ... maybe considered solely for the purpose of proving [Wright’s] intent or absence of mistake or accident.”
Before deliberations began, the parties and the judge also discussed the design of the verdict form, the judge suggesting that it could be appropriate to list the two alternative means of committing rape, giving the jury options to convict Wright on either, both, or neither. The State agreed, but defense counsel advocated for a general verdict form:
“I think that would be the best way to provide the jury with die ability to express [a] unanimous conclusion. The method by which they reach that conclusion is within their province. We have already told them in the last instruction before die verdict form, your agreement on a verdict must be unanimous.
“We are instructing you separately and independently that there is some ability to be less than unanimous in sort of a verdict, then I think we are inviting fraction — we’re inviting a division. I think we are being somewhat contradictory to the instruction that’s in the final instruction and the cleanest and best way to get their decision, regardless of how they reach it, is by saying guilty or not guilty of rape in the first instance and allowing the verdict must be unanimous. Suffice it to assist insofar as directing the outcome.”
The judge followed defense counsel’s recommendation on the verdict form, and the jury returned a general verdict of guilty.
Wright appealed her conviction to our Court of Appeals, arguing that the State presented insufficient evidence to support a conviction of rape by force or fear. Wright also asserted error in the admission of evidence about her two offers of genital massage, because such “[ejvidence of an individual’s willingness to perform a sexual act is different from an act of rape.” Wright further argued that this evidence — as well as the evidence that she visited pornographic websites, owned erotic videos, and was bisexual — could not be categorized as evidence of other crimes or civil wrongs under K.S.A. 60-455. She also asserted that the severe prejudice arising from these items of evidence outweighed their probative value.
The Court of Appeals panel affirmed Wright’s conviction. See State v. Wright, No. 97,013, unpublished opinion filed June 6, 2008. Addressing the sufficiency of evidence argument, the panel cited State v. Dixon, 279 Kan. 563, 604-06, 112 P.3d 883 (2005), and Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), holding that an alternative means case can be affirmed “if there is strong evidence supporting one theory and no evidence supporting the other theory” because any error is harmless. Wright, slip op. at 10. ‘Wright effectively concedes there was enough evidence to convict her under the ‘unconscious or physically powerless’ scenario due to J.L. being asleep when the penetration occurred.” Slip op. at 7. The panel also held that Wright’s K.S.A. 60-455 arguments were not properly before the court because Wright failed to make a contemporaneous objection to the contested evidence at trial. Wright, slip op. at 12.
This court granted Wright’s petition for review.
Alternative Means and Sufficiency of the Evidence
Both parties agree:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
Wright contends that the State’s proof of rape by force or fear was insufficient because penetration and fear did not occur simultaneously. She does not challenge the adequacy of the State’s proof on unconsciousness. Because, she asserts, one of the alternative means of committing rape was not proved, she is entitled to reversal under State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). Timley required sufficiency of evidence to support each alternative means upon which a juiy is instructed, in order to protect a criminal defendant’s right to a unanimous jury verdict. The State, on the other hand, urges this court to affirm Dixon as an exception to the Timley rule and to hold that any gap in the State’s proof was harmless error.
Jury unanimity on guilt in a criminal case is statutorily required in Kansas. See K.S.A. 22-3421; Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 277-79 (2005). This court has ruled that in an alternative means case “[t]here must be jury unanimity as to guilt for the single crime charged, but not as to the particular means by which the crime was committed.” See State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007).
The court first addressed alternative means in State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976). In Wilson, the State argued at trial that defendant David Wilson committed first-degree murder either by " ‘willful, deliberate and premeditated killing’ [or by] ‘a killing in the perpetration or attempt to perpetrate a robbery.’ ” Wilson, 220 Kan. at 344. The district court instructed the jury on both theories, and the jury convicted Wilson of first-degree murder. Wilson, 220 Kan. at 342, 344.
On appeal, Wilson argued that tire district court erred in instructing the juiy on both theories because:
“[I]t becomes impossible to determine which of the two theories the jury found was supported by the evidence .... [S]ome members of the jury may have found appellant guilty of a premeditated killing and others a felony murder, and... this would not be a unanimous verdict as required by our law.” Wilson, 220 Kan. at 344.
This court, acknowledging that it faced a question of first impression, rejected Wilsons argument:
“When an accused is charged in one count of an information with both premeditated murder and felony murder it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilty by reason of the killer’s malignant purpose. In such case the verdict is unanimous and guilt of murder in the first degree has been satisfactorily established. If a verdict of [first-degree] murder can be justified on either of two interpretations of the evidence, premeditation or felony murder, the verdict cannot be impeached by showing that part of the jury proceeded upon one interpretation of the evidence and part on another.” (Emphasis added.) Wilson, 220 Kan. at 345.
Although this holding from Wilson necessarily depended on the existence of sufficient evidence on each alternate theory, it is rarely cited for an alternative means rule. Instead, Timley, 255 Kan. 286, a 1994 case, became the lead precedent in alternative means law.
In Timley, defendant Irvin Timley argued that the district “court erred in instructing the jury that it could find him guilty if it found that [his] sexual act was perpetrated by use of force or fear.” (Emphasis added.) Timley, 255 Kan. at 288. Timley contended that because some jurors could have found him guilty by force and others by fear, unanimity of the verdict was in question. Timley, 255 Kan. at 288-89.
The court ultimately rejected Timley s argument, stating:
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be juiy unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]’ ” Timley, 255 Kan. at 289.
The court then held that there was sufficient evidence to convict Timley of rape and aggravated criminal sodomy either by force or by fear; thus “[tjhere was no error in including both alternative means in one instruction to the jury.” Timley, 255 Kan. at 289-90. The indispensable component in the court’s holding was “super-sufficiency” of evidence, i.e., proof adequate to persuade a rational factfinder of Timley’s guilt on rape by fear and rape by force. See Beier, 44 Washburn L.J. at 283, 294, 296-99 (discussing “super-sufficiency”). If evidence had been lacking on either means alleged, Timley’s rape conviction would have been reversed.
Several alternative means cases followed, adopting the Timley analytical pattern. See State v. Morton, 277 Kan. 575, 580-81, 86 P.3d 535 (2004) (sufficient evidence existed to convict defendant of first-degree murder by premeditation or felony murder); State v. Hoge, 276 Kan. 801, 813, 80 P.3d 52 (2003) (court must follow Timley’s test if determining jury unanimity in an alternative means case); State v. Beach, 275 Kan. 603, 623, 67 P.3d 121 (2003) (“[ujnder the alternative means analysis, ‘unanimity is not required ... as to the means by which the crime was committed so long as substantial evidence supports each alternative’ ”); State v. Carr, 265 Kan. 608, 963 P.2d 421 (1998) (adopting Timley), abrogated, on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006); State v. Kelly, 262 Kan. 755, 760-61, 942 P.2d 579 (1997) (same); see also State v. Alford, 257 Kan. 830, 896 P.2d 1059 (1995) (“defendant’s reliance on Timley for the rule that substantial evidence must support each alternative means of committing the offense of aggravated kidnapping is correct”).
Dixon struck out in a different direction.
In that case, tire State charged defendant Wallace Dixon with two counts of burglary, one for each time he unlawfully entered an apartment. For each count, the district court instructed:
“To establish this charge, each of the following claims must be proved:
“1. That [Dixon] knowingly entered or remained in a building which is a dwelling;
“2. That [Dixon] did so without authority;
“3. That [Dixon] did so with the intent to commit a theft and/or aggravated arson, a felony, and/or criminal damage to property, a felony therein.” Dixon, 279 Kan. at 601.
Citing Tirnley, Dixon argued that substantial evidence did not exist to support the first charge; the State provided no evidence indicating he had the intent to commit aggravated arson the first time he entered the apartment. Dixon, 279 Kan. at 602. The majority of this court agreed. Dixon, 279 Kan. at 603-04; compare Dixon, 279 Kan. at 622 (Beier, J., concurring in part and dissenting in part). But it quoted from a significant portion of State v. Johnson, 27 Kan. App. 2d 921, 923-26, 11 P.3d 67, rev. denied 270 Kan. 901 (2000), departing from Tirnley:
“ ‘Despite the language of Tirnley, courts of appeal have attained a degree of confidence in jury verdicts of guilt in cases where there is overwhelming evidence supporting the conviction under one of the alternative means. Those courts have concluded that it was harmless error in such cases for the trial court to instruct on all alternatives.
“ ‘Our Supreme Court dealt with such a scenario in State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992). The Grissom court held that a general verdict of first-degree murder could be upheld if there was sufficient evidence to convict the defendant of either first-degree premeditated murder or felony murder, and the State was not required to prove both. [Citation omitted.]
“ ‘Grissom adopted the view taken by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 59-60, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), with the following:
“ ‘Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation omitted],
“ ‘[I]f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury’s consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.’ ” 251 Kan. at 892.
“ ‘. . . In a Griffin situation, one can reasonably assume the jury did not behave capriciously and convict on a theory in which there was no evidence, when there was strong evidence supporting another theory.’ 27 Kan. App. 2d at 7.” Dixon, 279 Kan. at 605-06.
The court then determined that “there was strong evidence supporting at least one theory of each burglary and no evidence of at least one other theory” and that the erroneous burglary instructions were harmless. Dixon, 279 Kan. at 606.
The same day that Dixon was filed, this court handed down State v. Kesselring, 279 Kan. 671, 112 P.3d 175 (2005). Kesselring mentioned neither Dixon nor Timley but followed Timley’s alternative means analysis.
In Kesselring, defendant Michael W. Kesselring argued that “there was insufficient evidence to convict him of first-degree murder under a theory of either premeditation or felony murder.” Kesselring, 279 Kan. at 678. This court, quoting the alternative means test from Timley as outlined in State v. Hoge, 276 Kan. 801, 813, 80 P.3d 52 (2003), held that there was sufficient evidence to support a conviction of first-degree murder under either theory and that the prosecutor s argument consistent with the test was proper. Kesselring, 279 Kan. at 679-82.
Since 2005, this court has acknowledged the tension between Timley and Dixon, but not resolved it. See State v. Cook, 286 Kan. 1098, 191 P.3d 294 (2008) (appearing to rely in part on Dixon); compare Stevens, 285 Kan. at 316 (citing Kesselring for posing issue “whether sufficient evidence supports both means” of committing driving under the influence).
This decision does so. Although Dixon has obvious pragmatic appeal,
“it simply cannot coexist with Timley peacefully, providing a benign route to harmless error. ... [A] reversal mandated by Timley is a reversal for insufficient evidence. An insufficiency error cannot be harmless because it means the State failed to meet its burden of proving the defendant guilty beyond a reasonable doubt. This is a most basic guarantee of due process in criminal cases. [Citation omitted.]
“The Timley super-sufficiency condition evolved for a good reason. It evolved because we recognized that we were allowing uncertainty as to how the State persuaded each juror. We were comfortable with this uncertainty — at that particular level of generality in the juiy’s factfinding — only because we insisted on assurance that each juror’s vote was supported by a means for which there was sufficient evidence. Without that assurance, we are back to where we were before Timley. We have no guarantee that the jury was unanimous at the level of factual generality that matters most of all: guilt v. innocence.” Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L. J. 275, 299.
We are now persuaded that the Timley alternative means rule is the only choice to ensure a criminal defendant’s statutory entitlement to jury unanimity. Any contrary language in Dixon is specifically disapproved.
We now turn to application of the Timley rule to the facts of this case. Wright argues that the State’s proof of the alternative means of force or fear was inadequate. As mentioned above, she insists that the initial vaginal penetration had to be contemporaneous with J.L.’s fear.
K.S.A. 21-3502 provides: “Rape is: . . . [s]exual intercourse with a person who does not consent to the sexual intercourse,... [w]hen the victim is overcome by force or fear.” K.S.A. 21-3501(1) defines “sexual intercourse” as “any penetration of the female sex organ by a finger, .... Any penetration, however slight, is sufficient to constitute sexual intercourse.”
Analyzing K.S.A. 21-3501(1) and K.S.A. 21-3502(a)(l)(A), this court in State v. Bunyard, 281 Kan. 392, 412, 133 P.3d 14 (2006), determined that “[K.S.A. 21-3502(a)(l)(A)] proscribes all noncon-sensual sexual intercourse that is accomplished by force or fear, not just the initial penetration.” Although the facts of this case can be distinguished from those in Bunyard — the victim in Bunyard initially consented to the sexual intercourse but withdrew her consent after initial penetration — its holding has application here. Moreover, Bunyard recited that the majority of our sister states had agreed that rape could be accomplished at some point in time after initial penetration. See Bunyard, 281 Kan. at 411-13; see also State v. Baby, 404 Md. 220, 240, 946 A.2d 463 (2008) (“crime includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration”).
The evidence in this case was sufficient to find Wright guilty beyond a reasonable doubt of committing rape by force or fear. J.L. testified that she woke to the realization that Wright was digitally penetrating her vagina and was paralyzed with fear. Under Bunyard, it does not matter that the initial penetration by Wright may not have been temporally coincidental with J.L.’s fear; it is enough that the penetration and fear were eventually contemporaneous. There is no error under the Timley alternative means rule here, because the evidence of each means of committing rape— by force or fear or by unconsciousness — was sufficient to uphold a guilty verdict on the rape charge.
K.S.A. 60-455 Evidence
Wright also argues that the Court of Appeals erred by failing to address her K.S.A. 60-455 argument. She did not object to the prior acts evidence admitted during trial. Although Wright did challenge the K.S.A. 60-455 evidence pretrial, the issue is not properly before the court now under K.S.A. 60-404. We have interpreted that statute’s requirement of a “timely” objection to evidence to require a contemporaneous objection during trial. See State v. King, 288 Kan. 333, 204 P.3d 585 (2009). Although we are doubtful that certain items among the State’s K.S.A. 60-455 evidence qualified as prior crimes or civil wrongs, we do not reach the merits of this issue.
Affirmed.
# & *
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The opinion of the court was delivered by
Beier, J.:
This appeal concerns a dispute over six oil and gas leases. Landowners Michael L. Levin and Diane L. Levin; James L. Bell and Sheila R. Bell; Jeffrey Eidemiller and Diane Eidemiller; Donald R. Eidemiller and Sandra K. Eidemiller; Silver Star Ranch, LLC; Robert R. Mazza II and Carol M. Mazza; and Kansas Gas Exploration, LLC (KGE), filed separate petitions to quiet title against Maw Oil & Gas, LLC (Maw), and Clary Energy, LLC (Clary) (collectively lessees). Landowners requested that the district court declare: (1) Lessees have no right, title, or interest in the landowners’ realty; (2) title to landowners’ realty is vested in the landowners; and (3) KGE has the sole right to develop natural gas wells on landowners’ realty. The district court consolidated the cases and granted summaiy judgment to the landowners before any pretrial discovery, determining that the governing leases had terminated. Lessees appealed, arguing that the leases had not terminated because their shut-in royalty clauses extended them past their primary terms. Lessees have also asserted that genuine issues of material fact should have prevented summaiy judgment.
Refore we set forth the factual background of this consolidated matter, certain basics regarding oil and gas leases merit brief review. Judge Richard Greene succinctly recited an appropriate opening to such a review in the recent Court of Appeals case, Welsch v. Trivestco Energy Co., 43 Kan. App. 2d 16, 21-22, 221 P.3d 609 (2009), and we borrow from it here:
“[0]il and gas law is not so much a unique body of law as it is a specialized application of contract law. The rights and obligations of those operating in the Kansas oil patch are governed by the terms and conditions of specialized contracts, and each dispute arising in this context can and should usually be resolved by the construction and application of such contracts. Although parties to such disputes often seek to rely on and argue the application of case law, we must decline to blindly apply what may appear to be legal principles within such precedent without a preliminary determination whether the contract provisions at issue in the cited authority are identical to those before us. This is particularly true in construing a shut-in royalty clause. [Citation omitted.]
“Notwithstanding the importance of the particular lease terms and conditions, certain general characteristics of shut-in royalty clauses should be noted. The concept underlying such clauses is to enable a lessee, under appropriate circumstances, to keep a nonproducing lease in force by the payment of the shut-in royalty and that such a clause by agreement of the parties creates constructive production. In this manner, die clause can modify and become an integral part of the habendum clause, or extension clause, of the lease.” [Citation omitted.]
Rlack’s Law Dictionary 778-79 (9th ed. 2009), defines a “haben-dum clause” as
“[t]he provision in an oil-and-gas lease defining how long the interest granted to the lessee will extend. Modem oil-and-gas leases typically provide for a primary term — a fixed number of years during which the lessee has no obligation to develop the premises — and a secondary term (for ‘so long thereafter as oil and gas produced’) once development takes place.”
This court has referred to the secondary term described in Black’s Law Dictionary as a “ ‘thereafter’ provision,” or an “extension clause, of the habendum clause of an oil and gas lease.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 380, 855 P.2d 929 (1993). A lease may be extended past its primary term under a thereafter provision when a lessee produces oil or gas in paying quantities during the primary term. See Tucker, 253 Kan. at 380; Pray v. Premier Petroleum, Inc., 233 Kan. 351, 353, 662 P.2d 255 (1983); Texaco, Inc. v. Fox, 228 Kan. 589, 592, 618 P.2d 844 (1980); Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, 354-55, 240 P.2d 465 (1952). The phrase “in paying quantities,” as found in a thereafter provision, “means production of quantities of oil and gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs or equipping costs are never recovered and even though the undertaking as a whole may thus result in a loss to the lessee.” Tucker, 253 Kan. at 381 (citing Pray, 233 Kan. at 355). “[I]n paying quantities” is an implicit part of a habendum clause; the phrase applies even if it does not appear in the lease. Tucker, 253 Kan. at 380 (citing Pray, 233 Kan. at 353).
On the other hand, a shut-in royalty clause such as those at issue here and as discussed in Welsch allows a lessee to keep a lease in force when a well “capable of producing is not utilized because there is no market for the oil or gas.” (Emphasis added.) Black’s Law Dictionary 1446 (9th ed. 2009).
This court in Tucker explained:
“The shut-in royalty clause was developed to protect against automatic termination of a lease where a gas well was drilled and no market existed for that gas. The reason that the shut-in royalty clause has come into growing use goes back to the inherent physical nature of natural gas. Unlike oil, it cannot be produced and stored or transported in railroad cars or tank trucks. A lessee completing a gas well consequently often had a special and quite onerous problem in finding a market outlet for the gas production. This would, at times, result in losing a lease at the end of the primary term. [Citation omitted.]” Tucker, 253 Kan. at 381 (citing Pray, 233 Kan. at 353).
And in Pray we recognized that, absent a shut-in royalty provision, venture capital to explore for gas in new areas, known as wildcatting, would dry up. “The future supply of gas is dependent upon this risky and expensive business.” Pray, 233 Kan. at 353.
Factual and Procedural Background
Michael L. Levin and Diane L. Levin
On June 14, 2006, the Levins leased 128 acres in Miami County to Maw. The lease, drafted by Maw, contained a habendum clause, which stated in pertinent part:
“2. This is a PAID-UP LEASE and shall remain in force and effect for a term of six (6) months (’Primary Term’) from this date and as long thereafter as gas or its constituent products or other hydrocarbons are produced from said land, . . . or as long as LESSEE is conducting operations on said land .... If, at the expiration of the Primary Term, gas is not being produced from the premises . . . , but LESSEE is engaged in drilling, reworking or dewatering operations thereon, then this Lease shall continue in full force and effect as long as operations are being continuously prosecuted.”
The lease’s shut-in royalty clause stated:
“4. If, at any time, while there is a gas well or wells on the above land ..., and such well or wells are shut in, and if this lease is not continued in force by some other provisions hereof or if a well has been completed and dewatering operations have commenced, then it shall, nevertheless, continue in force as long as said well or wells are shut in and it shall be considered that gas is being produced from the leased premises in paying quantities within the meaning of this lease by the LESSEE paying or tendering to LESSOR annually, in advance a substitute or shut-in gas royalty
The Levins and Maw entered into a second lease for the same acreage on December 1, 2006, because the first lease was about to expire with no activity. The lease remained the same, except the primary term in the habendum clause changed from 6 months to “45 days . . . from December 14, 2006.” The second lease also included a provision stating: “The shut-in gas period called for in paragraph #4 above shall not exceed one (1) year[] and any one (1) year period in time.”
Although the parties do not agree on specific dates, a natural gas well was drilled sometime between February 6, 2007, and February 22, 2007, on the subject acreage.
While the Levins’ apparently knew the lease had been assigned, the lessees’ joint answer indicates that Maw assigned the Levins’ lease to Clary on March 26, 2006. The record on appeal does not appear to support this chronology. It shows the original Levins’ lease beginning June 14, 2006, almost 3 months after the alleged assignment. In addition, the Levin acreage is not listed in the March 26, 2006, assignment agreement between Maw and Clary.
Despite these gaps, Clary alleges it tendered shut-in royalty and advance royalty checks to the Levins; and the record shows the Levins received and negotiated a $128 check from Clary on February 22, 2007.
On June 22, 2007, the Levins leased their land to KGE and signed an affidavit of nonproduction.
James L. Bell and Sheila R. Bell
On December 6, 2005, the Bells leased 80 acres in Miami County to Maw. The habendum and shut-in royalty clauses in their lease were identical to those in the Levin lease.
Maw assigned the Bells’ lease to Clary on March 26, 2006. Although the parties do not agree on specific dates, four natural gas wells were drilled sometime between March 29, 2006, and May 22, 2006, on the subject acreage.
Clary issued the following five checks to the Bells: (1) May 2006, $80 for shut-in royalty; (2) March 14, 2007, $2,000 for advance royalty; (3) April 2007, $80 for shut-in royalty; (4) April 19, 2007, $2,000 for advance royalty; and (5) May 25, 2007, $2,000 for advance royalty. The Bells negotiated the first check.
On March 9, 2007, the Bells leased their land to KGE and filed an affidavit of nonproduction.
Jeffrey Eidemiller and Diane Eidemiller
On February 8, 2006, Jeffrey and Diane Eidemiller leased 29.59 acres in Miami County to Maw. While the habendum clause in this lease varied slightly from those in the Levin and Bell leases, the difference is not relevant to the issues before us. The shut-in roy alty clause in this lease was identical to those in the Levin and Bell leases. A natural gas well was drilled between Februaiy 20, 2006, and March 28, 2006, on the subject acreage.
Maw assigned the lease to Claiy on March 26, 2006.
Clary issued the following four checks to Jeffrey and Diane: (1) May 1, 2006, $30 for shut-in royalty; (2) March 14, 2007, $500 for advance royalty; (3) April 19,2007, $30 for shut-in royalty; (4) April 19, 2007, $500 for advance royalty. Jeffrey and Diane negotiated the first check.
On April 12, 2007, Jeffrey and Diane leased their land to KGE and filed an affidavit of nonproduction.
Donald R. Eidemiller and Sandra K Eidemiller
On November 11, 2005, Donald and Sandra Eidemiller leased 58 acres in Miami County to Maw. Their lease's habendum and shut-in royalty clauses were identical to those in the lease between Jeffrey and Diane Eidemiller and Maw. An addendum to the lease between Donald and Sandra Eidemiller and Maw, dated November 8, 2005, stated:
“If Lessee does not commence drilling of its first test well for gas purposes somewhere on the South 15.11 acres within 90 days from the date of this lease . . . this lease shall become null and void. If Lessee elects to drill a second gas well, said well will be on the 20 acres directly to the North of the 15.11 acres referred to above. Said second well must be commenced within 6 months of completion [of| the first well drilled on this lease.”
The parties signed another amendment on Februaiy 10, 2006, which provided for drilling of a third well.
Although the parties do not agree on specific dates, three natural gas wells were drilled sometime between January 25, 2006, and March 7, 2006, on the subject acreage.
Maw assigned the lease to Claiy on March 26, 2006.
Clary issued the following checks to Donald and Sandra: (1) May 5, 2006, $58 for advance shut-in royalty; (2) Februaiy 8, 2007, $58 for advance shut-in royalty; (3) March 14,2007, $1,500 for advance royally; and (4) April 19, 2007, $1,500.00 for advance royalty. The first check was negotiated.
On March 16, 2007, Donald and Sandra leased their land to KGE and filed an affidavit of nonproduction.
Silver Star Bunch, LLC
On January 26,2006, Silver Star leased 42 acres in Miami County to Maw. The Silver Star lease’s habendum clause varies slightly from the habendum clauses in other parties’ leases, but the difference is not relevant in this case. Silver Star’s shut-in royalty clause was identical to those in the other leases at issue.
A natural gas well was drilled between February 28, 2006, and March 3, 2006, on the subject acreage. Drilling for a second gas well began March 16, 2006. This drilling was never completed. Maw assigned Silver Star’s lease to Clary on March 26, 2006. Clary issued the following four checks to Silver Star: (1) March 2006, $42; (2) March 2007, $820; (3) April 2007, $42; and (4) April 19, 2007, $820. Silver Star negotiated the first check but returned the three other checks.
On May 2, 2007, Silver Star leased its land to KGE and filed an affidavit of nonproduction.
Robert R. Mazza II and Carol M. Mazza
On March 16,2006, the Mazzas leased 80 acres in Miami County to Maw. Their lease’s habendum clause was identical to Silver Star’s habendum clause. According to the record on appeal, the shut-in clause appears to be identical in pertinent part to those in the other leases at issue.
Maw assigned the Mazzas’ lease to Clary on March 26, 2006. Three natural gas wells were drilled between April 14, 2006, and July 21, 2006 on the subject acreage.
Clary issued the following four checks to the Mazzas: (1) March 2006, $80; (2) March 14,2007, $1,500 for advance royalty; (3) April 19, 2007, $1,500 for advance royalty; and (4) May 25, 2007, $1,500 for advance royalty. The Mazzas negotiated the first check.
On June 25, 2007, the Mazzas leased their land to KGE and signed an affidavit of nonproduction.
District Court Proceedings
Each of the sets of landowners described above joined with KGE and filed a separate verified petition to quiet title against Maw and Clary.
The answers filed by Maw and Clary admitted that no pipe had been laid to deliver gas to a gathering system and that the wells had neither produced nor led to sale of any natural gas. Maw and Clary also filed counterclaims, alleging KGE tortiously interfered with their leases with the landowners.
Before discovery began, the landowners filed motions for summary judgment. They argued that the leases had expired and asserted that it was uncontroverted that no completion activities had been undertaken to allow the wells to produce and deliver natural gas to commercial markets. According to their memoranda in support of their motions, the wells had had no production; no natural gas had been marketed; Maw and Clary had not dewatered the wells; Maw and Clary had not constructed a pipeline to allow access to a gathering system; and Maw and Clary had not constructed a gathering system to allow transport of gas. Under these circumstances, the landowners argued that they were entitled to summary judgment in their favor because the leases’ primary terms had expired under tire plain language of the habendum clauses requiring actual production, and the shut-in royalty clauses were not triggered because the wells were not capable of producing natural gas in paying quantities even though a market existed to sell the natural gas. The landowners also asserted that discovery was not necessary.
Maw and Clary responded jointly to the motions, purporting to controvert the landowners’ facts and contending they had already rebutted the allegations in their answers. Maw and Clary pointed to the shut-in royalty clauses, arguing Clary’s payment or tender of shut-in royalties had served as constructive production to maintain the leases. Maw and Clary provided an affidavit from John H. Land, president of Clary, which included the following:
“3. Clary has expended approximately $25,000.00 to drill each of the wells that have been described .... Clary has expended additional sums in attempting to remedy surface damage issues that, in many cases, had been ignored by the prior contract operator, and believes that everything has been done, consistent with industry standards, to prepare these wells for the production once a pipeline connection can be established. I believe that these wells are certainly capable of producing gas on a commercial basis.
“4. One of my primary job responsibilities with Clary . . . has been to develop a market for this gas. For many months we waited for a proposal from Riverdale Pipeline, which delay forced Clary ... to develop an alternative market for the gas that can be produced by these wells.
“5. We have diligently attempted to develop an alternative market for this gas, designed a gathering system, and made arrangements to obtain financing. Those activities have been frustrated and delayed by the filing of these lawsuits.
“6. ... I believe that Clary . . . has drilled wells within the primary term of each lease, and tendered shut-in payments in a timely [manner] that would extend the term of these gas leases.”
Maw and Clary further argued that summary judgment was inappropriate because discovery had not yet taken place.
The district judge issued his decision, first consolidating the cases and then determining that Land’s affidavit was inadequate to controvert the fact that the wells required several improvements, including “a dewatering system, pipelines to a gathering system, and a gathering system,” before they could produce natural gas. The district judge noted: “[Land] opines that the wells are ‘certainly capable of producing gas in paying quantities.’ [Land] does not dispute the allegation that these mechanical or engineering improvements are necessary before any gas can be produced whatsoever.” The judge acknowledged that the term “shut-in wells” was not defined by the leases and then quoted Norman v. Apache Corp., 19 F.3d 1017, 1027 (5th Cir. 1994):
“ ‘[S]hut-m is a generic term used to refer to the closing of the [valves] through which oil and gas flow through a well, its legal meaning refers to the closing of [valves] when production at a well capable of producing in paying quantities is temporarily halted to repair or clean the well, to allow reservoir pressure to build, or for a lack of market.’ ”
He also quoted 8 Williams and Meyers, Manual of Oil and Gas Terms, p. 973 (2006), which described a “shut-in well” as “a producing well that has been closed down temporarily for repairs, cleaning out, building up pressure, lack of market, etc.”
Each of these definitions from the district judge’s sources rested on the temporary nature of production cessation in a well that had earlier been producing. The judge ruled that Kansas law would require a well to be capable of producing in paying quantities to trigger a shut-in royalty clause and extend the primary term of a gas lease. He thus framed the issue before him as: “Does the word capable’ within the phrase ‘capable of producing in paying quantities’ require that a well be capable of production without any additional equipment?” Although Kansas cases had never defined the term “capable,” the district judge relied on two Texas cases—Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 557-58 (Tex. 2002), and Hydrocarbon Mgt. v. Tracker Exploration, 861 S.W.2d 427, 433 (Tex. App. 1993) — to rule that a gas well is capable of producing in paying quantities if it does not require additional equipment or repairs. The judge regarded this definition as consistent with Kansas law and this court’s previous decisions.
The district judge continued: “The wording of [the shut-in royalty clause] is at best confusing and ambiguous and at worse nonsensical. The lease requires as conditions precedent that a well be both ‘shut-in’ and completed with a dewatering operation to have commenced.” Because it was uncontroverted that dewatering operations had not begun and thus the well was not capable of producing in paying quantities, the district judge granted the summary judgment sought by the landowners and dismissed the counterclaims.
Appeal
This appeal by Maw and Clary was transferred from the Court of Appeals. In addition to the parties’ briefs, we have received and reviewed an amicus brief from Dart Energy Corporation and a joint amici brief from the Eastern Kansas Royalty Owners Association and the Southwest Kansas Royalty Owners Association. The landowners submitted a brief responding to amicus Dart Energy Corporation.
Standard of Review
It has long been established:
“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers tb interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” ’ ” Troutman v. Curtis, 286 Kan. 452, 454-55, 185 P.3d 930 (2008) (quoting Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 [2007]).
Furthermore, K.S.A. 2009 Supp. 60-256(f) provides the district court with discretion to deny a motion for summary judgment when discovery is needed. See Troutman, 286 Kan. at 458-59. An appellate court’s “standard of review of such a district court decision is for abuse of discretion.” Troutman, 286 Kan. at 459.
The summary judgment before us involves the interpretation and legal effect of a written instrument. These are matters of law, and an appellate court exercises unlimited review of a district judge’s decision on the content and consequences of a written contract. City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007). “The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, die intent of the parties is to be determined from the language of the contract without applying rules of construction.” Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
“An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four comers. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]” Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10, 13 P.3d 351 (2000).
Definition and Application of Shut-in Royalty Clauses
The leases involved in this case contain typical habendum clauses; each clause contained a primary term, which varied by landowner, and a thereafter provision extending the lease as long as gas or its constituent products or other hydrocarbons were being produced. In other words, to continue the leases under the thereafter provisions in the habendum clauses, lessees were required to produce gas in paying quantities during the primary terms. Because they admitted in their answers that they did not actually do so, any extension of the leases therefore became dependent on application of the shut-in royalty clauses to establish constructive production.
We disagree with the district judge’s harsh assessment that the shut-in royalty clauses before us are “at best confusing and ambiguous and at worst nonsensical.” We also disagree on the game-changing significance of dewatering operations; it was a possible step but not an indispensable step before the shut-in royalty clauses could come into play.
Although the shut-in royalty clauses certainly are more wordy than might be strictly necessary, they nevertheless unambiguously set up three conditions for their application to perpetuate the leases. The first condition is the existence of a gas well or wells on the subject land. The parties do not dispute that this condition is satisfied under the facts before us. The second condition is that the well or wells be shut-in; whether the subject wells qualify as shut-in is a hotly contested question. The third condition may be satisfied by one of two fact patterns: Either the leases must not be continued in force by some other lease provision or the well or wells must be “completed” and dewatering operations commenced. There is no dispute that dewatering operations have not begun; thus, if the third condition is satisfied, it must be because the first alternative is satisfied, i.e., the term of the leases cannot have been extended by a provision other than the shut-in royalty clauses. There is no dispute between the parties on the satisfaction of this alternative. If, and only if, the three conditions are satisfied, the payment of shut-in royalties, such as those paid or tendered here, must occur to extend the term of the leases.
We thus must examine the second condition, i.e., whether the wells qualify as shut-in. Once a legal definition for this term is established, we regard the issue of whether the subject wells satisfied the definition as a fact question. In tins appeal, the devil is in the definition.
The leases before us do not define shut-in. We therefore turn to case law to fill in what the parties did not tell us. Several previous Kansas Supreme Court cases assist us.
In Dewell v. Federal Land Bank, 191 Kan. 258, 380 P.2d 379 (1963), this court ruled on a dispute involving whether the term of a mineral rights reservation in a warranty deed between a seller and a purchaser that required actual production could be extended by payment or tender of shut-in royalties creating constructive production under a subsequent oil and gas lease entered into by the purchaser s successor and a lessee. The answer was no. Dewell, 191 Kan. at 263; see also Classen v. Federal Land Bank of Wichita, 228 Kan. 426, 432, 617 P.2d 1255 (1980) (restating this as issue of Dewell); Friesen v. Federal Land Bank of Wichita, 227 Kan. 522, 526-28, 608 P.2d 915 (1980) (Herd, J., dissenting) (recognizing this as true holding of Dewell, in contrast to expanded mischaracteri-zations in subsequent cases having to do with production from different tracts within pooled or unitized area).
In Dewell, the reservation’s initial term was 20 years — from May 13, 1939, until May 13,1959 — which would be extended “ ‘so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated.’ ” Dewell, 191 Kan. at 258-59. A 10-year oil and gas lease executed in September 1947 by the landowner was extended by operation of the lease’s shut-in royalty clause when drilling ended in September 1957, “on which date the well was completed as a gas well capable of producing natural gas in paying quantities,” and annual royalties were paid by the lessee. (Emphasis added.) Dewell, 191 Kan. at 259. The gas well “completed” in September 1957 was “shut-in and not connected to a pipeline” until January 1960. (Emphasis added.) Dewell, 191 Kan. at 260. We stated:
“The shut-in royalty clause contained in the leases was for the sole benefit of the lessee. It is a privilege granted the lessee in lieu of production. It does not purport to convey any estate or rights to anyone else. Neither does it purport to extend the interest of the holders of the mineral rights.
“The provision in the lease executed by [landowner], to which the reversioner was not a party, for payment of shut-in royalty[,] does not constitute an agreement by the reversioner to extend the term of the mineral grant nor malee the payment of shut-in royalties the equivalent of production.” Dewell, 191 Kan. at 261-62.
Our court agreed with a Texas decision in which the court distinguished between a well capable of producing, i.e., the type of well that activated the shut-in royalty clause in the lease, and a well actually producing, i.e., the type of well necessary to continue the reservation of mineral rights under the warranty deed. Dewell, 191 Kan. at 263 (quoting Sellers v. Breidenbach, 300 S.W.2d 178, 179 [Tex. Civ. App. (1957)]). Because the well in question was only the former and not the latter before dre May 1959 expiration of the 20-year primary term of the reservation, the reservation was not extended. Dewell, 191 Kan. at 263.
Dewell is significant to the question before us because it implicitly defines shut-in. A well is shut-in when it is completed and capable of producing natural gas in paying quantities. The well in Dewell qualified as soon as drilling was completed in September 1957, even though the well was not connected to a pipeline until more than 3 years later.
The second of our earlier helpful cases was Martin v. Kostner, 231 Kan. 315, 644 P.2d 430 (1982). In that case, lessees sued to quiet their tide to certain oil and gas leasehold estates, and the district judge’s ruling in their favor was upheld on appeal. In order to do so, the court examined whether activity on the subject property had been sufficient and timely under an exceptionally straightforward shut-in royalty clause. It read:
“ ‘[A]t any time, either before or after the expiration of the primary term of this lease, if there is a gas well or wells on the above land . . . and such well or wells are shut in before or after production therefrom, lessee or any assignee hereunder may pay or tender annually at the end of each yearly period during which such gas well or gas wells are shut in, as substitute gas royalty, a sum equal to the amount of delay rentals provided for in this lease for the acreage then held under this lease by the party making such payments or tenders, and if such payments or tenders are made it shall be considered under all provisions of this lease that gas is being produced from the leased premises in paying quantities.’ ” Martin, 231 Kan. at 317.
The subject leases were executed on November 6, 1975, for a primary term of 3 years, with conventional habendum clauses allowing continuance of the leases “ ‘as long thereafter as oil, liquid hydrocarbons, gas or other respective constituent products, or any of them, is produced from said land or land with which said land is pooled.’ ” Martin, 231 Kan. at 315. In July 1978, i.e., within the primary term, drilling on one tract began, and, on September 1, 1978, “the well was completed and shut in awaiting hookup” with a gas line. (Emphasis added.) Martin, 231 Kan. at 316. The well was not hooked up to the pipeline until late December 1978 and not turned on until January 3, 1979, i.e., beyond the primary term of the leases. Within a few days, the well began producing. The next month, drilling began on second tract, which is when the parties’ dispute arose.
Among other arguments, the landowners argued that the lessees’ failure to tender or pay shut-in royalties before the expiration of the leases’ primary term doomed its continuation. Our court agreed with the district judge that, under the shut-in royalty clause, die 1-year period for remittance of payment did not begin until a well “capable of producing gas” was “completed,” which had occurred on September 1, 1978. Martin, 231 Kan. at 317. Although later language in the opinion also indicates that the fact the well had been placed “in production” within 1 year of the expiration of the primary lease term was significant to our court’s analysis and outcome, see Martin, 231 Kan. at 317, this language contradicts the shut-in clause at issue, and we hereby disavow it. The clause before us in Martin plainly required only that the shut-in royalty be tendered or paid at the end of the year after the expiration of the primary term and annually thereafter, regardless of whether actual production had ever been begun before the well was shut in during the primary term. The clause said nothing about the significance or lack of significance of production that started after the primary term expired.
Again, as with Dewell, the significance of Martin to this case is its implicit definition of shut-in. The well was “capable of producing gas” and “completed,” i.e., shut-in on September 1, 1978. It was not necessary either that it be hooked up to a pipeline or turned on before it qualified as shut-in and activated the shut-in royalty clause.
The third case offering some guidance on the definition of shut-in to be applied in this case was decided in 1983: Pray v. Premier Petroleum, Inc., 233 Kan. 351, 662 P.2d 255 (1983). In that case, a landowner was able to quiet title in the district court for lack of production after a lessee drilled a well on leased acreage. The well was the only one in its area and was 3 miles from the nearest gas pipeline. The lessee invoked the lease’s shut-in royalty clause in its effort to extend the term of the lease under the habendum clause.
This court first observed that shut-in royalty clauses can provide a remedy for a situation in which no market is available by the end of the primary term of a gas lease.
“Even though the construction of a shut-in royalty clause depends on the specific terms of the lease in question, certain general characteristics of shut-in royalty clauses should be noted.
“First, such clauses actually modify the lease’s habendum clause to provide for a type of ‘constructive production.’ [Citation omitted.]. . . .
“Second, [such clauses work for benefit of both parties]. . . . [T]he implied covenant to reasonably develop the leasehold is applicable. [Citation omitted.] Here, however, the complaint against the lessee is not for breach of these provisions. In fact, the evidence indicates the lessee diligendy searched for a market.
“Finally, although the shut-in royalty clause does not normally specify the shut-in gas well must be capable of producing in paying quantities, such a requirement is implied. As noted, the shut-in royalty clause is a savings clause allowing for constructive production. Such clauses provide that upon payment of the shut-in royalty it will be considered gas is being produced within the meaning of the habendum clause. In order to achieve the desired result, namely a profit, production, whether actual or constructive, must be in paying quantities. [Citation omitted.]” Pray, 233 Kan. at 353-54.
In Pray, the operative shut-in royalty clause in the lease was simple. It required only (1) that there be a well where only gas was found and (2) that such gas not be sold or used. If these two conditions were met, the lessee would be permitted to extend the lease by paying shut-in royalties. The specific question before this court in Pray was whether the cost of connecting the lonely subject gas well to a pipeline should be part of the calculation to determine whether the implied requirement that any production be “in paying quantities.” Pray, 233 Kan. at 356. This court decided that the cost of the pipeline should not be so considered:
“Involved here is precisely the type of situation contemplated by the clause — a well capable of producing a profit is drilled but for the time being no market exists. This is much different from cases . . . where no shut-in royalty clause is involved and a determination of production in paying quantities can be made simply by looking at tire performance of the well. [Citation omitted.] A case such as the one at bar, on the other hand, necessarily involves some speculation. This speculation should not include the cost of taking the gas to market when the parties have foreseen in the lease the possibility a market might not exist.
“We hold capital expenditures for budding a pipeline are improper considerations for determining whether a gas well will produce in paying quantities under a shut-in royalty clause.” Pray, 233 Kan. at 356-57.
Pray, although it focused its attention on the contours of “in paying quantities,” again implicitly defined a shut-in well as one that had been drilled but not connected to the facilities necessary to market or transport any gas produced.
The fourth of our helpful previous cases discussing shut-in royalty clauses was Robbins v. Chevron U.S.A., Inc., 246 Kan. 125, 785 P.2d 1010 (1990). Robbins primarily concerned the proof necessary to avoid summary judgment on an action for breach of an oil and gas lessee’s implied covenant to produce and market production reasonably and diligently. It differed from the previous cases because producing wells had been shut in when a dispute about price arose rather than never activated or turned on. Lessee Chevron timely tendered shut-in royalty payments under a clear clause in the lease. The importance of Robbins to this case is the distinction it emphasizes between a claim for violation of the implied covenant, which entitles a lessor to damages, and a claim for violation of a shut-in royalty clause, which entitles a lessor to cancellation of the lease. As Pray had observed, “ ‘[t]he fact a lease is held by payment of shut-in royalties does not excuse the lessee from his duty to diligently search for a market and reasonably develop the leasehold.’ ” Robbins, 246 Kan. at 135 (quoting Pray, 233 Kan. 351, Syl. ¶ 3.
The distinction on which Robbins focuses also bears emphasis here. To the extent the landowners in this case argue with Maw and Claiy because of a failure to develop and maximize any market advantage or position, and to the extent Land’s affidavit contests landowners’ view on that subject, this case involves the covenant to produce and market reasonably and diligently. Any alleged or actual breach of that covenant should not be confused with a claim that the shut-in royalty clause did not apply or, if it applied, was not met.
The last potentially relevant shut-in royalty case from our court was decided in 1993. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 855 P.2d 929 (1993). Tucker involved certain landowners’ efforts to terminate leases whose wells required particularly challenging maintenance. As in Robbins, the wells had been producing, but the lessees allowed them to be shut down for several years while the cost of their maintenance was not, at least in their view, justified by the revenue stream the wells generated. Meanwhile, the lessees paid shut-in royalties to the landowners.
As in Pray, the language of the shut-in royalty clauses at issue was relatively simple. It required (a) that the well or wells be capable of producing gas only and (2) that the gas not be sold or used for a period of 1 year. If shut-in royalties were paid or tendered, the leases would be regarded as producing under the leases’ ha-bendum clauses.
This court held that the shut-in royalty clauses and payments did not save the leases, when the district court found that there was a limited market for the gas from the wells and the lessees chose to stop producing because the wells required constant work. The court’s discussion appears to focus alternately on both the shut-in royalty clauses and the covenant to produce and market. Tucker, 253 Kan. at 378-82.
Although Tucker asserts that the total absence of a market for natural gas is a prerequisite to classify a well as shut-in and thus bring into play a shut-in royalty clause, this assertion appears to arise out of an overinterpretation of Pray and insufficient attention to the subject leases’ language. The presence or absence of a market and its prospects for a lessee’s ability to turn a profit may be made pertinent to interpretation and application of a shut-in royalty clause because of the lease’s language, but it is not inevitably relevant as a matter of law. In other words, Pray did not make the absence of a market a part of Kansas’ definition of “shut-in.” Such a consideration is, on the other hand, indispensable to analysis of whether a lessee has discharged its duty under the covenant to produce and market. That covenant is not before us here.
We see more useful guidance in the Court of Appeals’ December 2009 decision in Welsch v. Trivestco Energy Co., 43 Kan. App. 2d 16, 221 P.3d 609 (2009). In Welsch, the lessee’s successor, Trivestco, had failed to pay or tender any shut-in royalties during the 2Vz years that actual production from the lease’s well was stopped because of the gas purchaser’s financial problems. Trivestco also did not attempt to restart production from the well or to drill elsewhere on the lease after the 2Vz years passed. The district judge refused to grant summaiy judgment cancelling the subject lease, ruling that the lease’s shut-in royalty clause created a covenant entitling the lessor and any successor to money damages rather than a condition entitling the lessor and any successor to termination. The Court of Appeals panel disagreed, reversing and remanding with directions to cancel the lease. Welsch, 43 Kan. App. 2d at 18, 29.
The panel observed the critical importance of lease language:
“First, we note that the [shut-in royally provisions of the subject lease] are not a part of the habendum clause but rather are contained within the royalty clause. Second, we note that the provisions are stated in language indicating that such payments are optional; that is, the lease provides that the lessee ‘may’ pay or tender such royalties rather than employing language of obligation. Third, we note that the provisions contain tire saving clause that if such royalties are paid, ‘it shall be considered under all provisions of this lease that gas is being produced from the leased premises in paying quantities’; that is, payment of such royalties — if elected by the lessee — is obviously intended to relate to the habendum clause that preserves the lease in effect ‘as long thereafter as’ production is achieved. Finally, we note that production from the lease was achieved during the primary term, and its cessation occurred well into the secondary term of the lease, where the ha-bendum clause required production for the term of the lease to continue. These unique features of the shut-in royalty provisions are paramount to our construction and application of those provisions to the factual circumstances here.
“Generally, rehable authorities recognize that an option to pay shut-in gas royalties — in contrast to an obligation to do so — can support cancellation where tbe optional royalties are not paid. Generally, such an option is considered to create a special limitation on the lease, and the failure to pay the shut-in royalties will terminate the lease. [Citation omitted.] . . .
“. . . [H]ere the lease does provide ‘by implication’ that it will expire absent such payment. In stating that ‘if such payments or tenders are made it shall be considered under all provisions of this lease that gas is being produced,’ the lease implies that if such payments are not made, the production requirement of the habendum clause is not satisfied by reason of the shut-in well. In the absence of production in paying quantities, the lease expires by its own terms.” Welsch, 43 Kan. App. 2d at 22-23.
Compare Daniels v. Quest Cherokee, 2009 WL 5062371 (Kan. App. 2009) (unpublished opinion) (decided same day by same panel as Welsch; interpreting stand-alone mandatory shut-in royalties clause with no reference to habendum clause to be covenant rather than condition).
A synthesis of these earlier cases from our court and the Court of Appeals makes it evident that a well generally qualifies as shut-in under Kansas law when it is physically complete and capable of producing in paying quantities, even if it has not actually produced in paying quantities in the past. The fact that it has not yet been connected to a pipeline does not necessarily make it incomplete or prevent it from being accurately described as shut-in. The setup and performance of dewatering operations may affect a well’s completeness, but we decline the lessors’ invitation to adopt a rigid legal definition of shut-in entirely dependent upon whether de-watering has begun or upon whether equipment or repairs are still needed. See Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 557-58 (Tex. 2002); Hydrocarbon Mgt. v. Tracker Exploration, 861 S.W.2d 427, 433 (Tex. App. 1993). Under Kansas case law and in the absence of a lease provision to the contrary, the factors to be considered by the factfinder in determining whether a well is physically complete and capable of producing in paying quantities, i.e., shut-in, are those that affect the properties and potential of the well itself, rather than the likely success of any processing or transport of product that remains to be attempted or accomplished. Other factors, such as comparisons to marketing efforts pursued for minerals produced on neighboring leases, on the other hand, are not relevant. They go to the entirely different legal theory— whether damages are due for breach of the covenant to produce and market production reasonably and diligently — that is not before us here. Today we look only at a claim that the subject oil and gas leases should be cancelled for failure to extend their terms through compliance with their shut-in royalty clauses.
As we have stated, the question of whether the wells at issue in this consolidated case qualified as shut-in, defined as it must be when the leases are silent purely by our synthesis from case law, is one of fact. Although a future case may arise on a record in which the uncontroverted evidence malees the correct finding of fact inescapable, this is not such a case. This case must therefore be reversed and remanded with directions to vacate the summary judgment in favor of landowners and to permit further proceedings, including, as. the parties and the district judge deem necessary, discovery and the development of expert testimony. The question to be answered by the trier of fact is whether the subject wells were physically complete and capable of producing in paying quantities.
Because the analysis and discussion above are dispositive, we do not reach lessees’ other arguments in favor of reversal of the district court’s decision.
Reversed and remanded to district court with directions to vacate the summaiy judgment in favor of the landowners and conduct further proceedings.
McFarland, C.J., not participating.
Daniel L. Love, District Judge, assigned.
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The opinion of the court was delivered by
Davis, C.J.:
Reginald M. Johnson was found guilty of first-degree murder. He was sentenced to life in prison without the possibility of parole for 25 years. Johnson appeals his conviction. We affirm.
Factual and Procedural Overview
Most of the facts presented are from the testimony of defendant Reginald M. Johnson.
Johnson was at work on August 20, 2007, when his colleague, Eddie Porter, approached him during their lunch break and told him that Johnson needed to talk to Amy Whiteman, Johnson’s common-law wife. Johnson, suspicious that Whiteman might be cheating on him, asked Porter if Whiteman was “stepping out” on him. Porter confirmed Johnson’s suspicions, told him he needed to speak with her, and provided Johnson with a name: Anthony.
Johnson received permission from his boss to leave work for the rest of the day, called Whiteman, and asked that she meet with him in a nearby parking lot. Johnson confronted Whiteman, and she told him that Anthony was “just a friend.” Johnson, however, did not believe Whiteman and demanded that she give him back his truck and move out of their house. Whiteman suggested they go home and talk, but instead they went to see her (and also formerly his) therapist.
They arrived at the therapist’s office only to discover she was unavailable and again began discussing their situation in the office parking lot. Johnson again asked Whiteman about Anthony, and she continued to deny that Anthony was anything more than a friend. Johnson told her to give him her car keys and cell phone because both belonged to him. He then told her that he would have her belongings waiting for her in the front yard, “so there [was] no reason for [her] to come in the house.” Johnson then locked the vehicle he had been driving and left in the truck White-man had been driving. Johnson, who suffered from depression and had previously attempted suicide, called his therapist and made an appointment to see him that evening. He then drove home. White-man called her friend Lisa Sandoval to pick her up and take her home to get her clothes.
Johnson arrived home and started moving Whiteman’s clothes into the front yard. As he was doing so he noticed a rose and a card he had given to Whiteman the day before. “At that point,” Johnson testified, he “didn’t want to live any more.” He then re trieved his gun, planning on committing suicide. Noticing Sandoval’s car arrive in front of the house, however, he instead put the gun in the closet by the front door and went out to the front yard. Johnson there again confronted Whiteman about her infidelity and their relationship, while Sandoval waited in her car.
Sandoval reminded Whiteman and Johnson twice that their son, Josiah, would be home from school soon and suggested they remove Whiteman’s belongings from the yard. Johnson and White-man finally started carrying them back into the house. Sandoval checked with Whiteman to make sure she was okay before Sandoval left, and Whiteman indicated she was fine. Johnson thanked Sandoval for bringing Whiteman home, said everything was going to be all right, and told her that he was not the “monster” White-man had portrayed him to be. Sandoval asked Whiteman to call her later and left.
Whiteman and Johnson continued moving Whiteman’s belongings back inside. They also agreed that Whiteman would accompany Johnson to meet with his therapist that evening to discuss their situation and possible separation. They moved to the backyard and continued to talk about their problems. While there, Josiah arrived home from school. Johnson told Whiteman she needed to tell Josiah why they were separating. He told Josiah that his mother was sleeping with another man. Josiah indicated he did not want to move away and left to ride his bike around the neighborhood.
After Josiah left, the couple went back inside and continued talking. Eventually Johnson told Whiteman to pack up her things. Whiteman, however, saying she needed “closure” so she could “move on,” told him she had been planning on moving out and had been having an affair with Anthony. Johnson told her he did not want to hear about it, but she continued, telling him she had slept with the man four times. Johnson told her he did not want to know any more and said, “Could you just get your things now and leave?” Whiteman refused to leave and instead continued to provide details on the affair. Then, according to Johnson, his “heart started beating really fast, just pounding,” his head started to hurt, and then everything went black. He did not remember getting the gun from the closet, did not remember hearing the shotgun “being discharged,” never intended to hurt Whiteman, but simply wanted her to “get her things and leave.” At some point, a noise at the door roused him, and he opened his eyes. Whiteman was lying on the floor. Fearing the noise at the door was Josiah coming home, he pulled Whiteman s body into the bedroom because he “didn’t want [Josiah] to see his mom like that.”
The State described those same events this way: Johnson silenced Whiteman “when he retrieved his Mossberg pump-action shotgun from the living room closet, pointed it at her, and shot her four times.”
Johnson then went to a Wichita police station and informed officers there that he had hurt his wife. The police went to Johnson’s house, found three shotgun shells and the shotgun on the floor of the living room, a trail of blood leading to a bedroom, and White-man’s bloody body on the bedroom floor. The body was transported to the hospital, where Whiteman was pronounced dead from shotgun wounds to the chest and thigh.
Johnson was charged with first-degree, premeditated murder. He proceeded to a jury trial where the court instructed the jury as to first-degree murder, second-degree murder, and “heat of passion” voluntary manslaughter. During the instructions conference, defense counsel requested an instruction on “sudden quarrel” voluntary manslaughter. The district court denied the request and instead instructed the jury only on heat of passion voluntary manslaughter. The jury convicted Johnson of one count of first-degree murder. The district court sentenced him to life in prison with the possibility of parole after 25 years.
Johnson appealed his conviction, arguing the district court erred in failing to instruct the jury on sudden quarrel voluntary manslaughter. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
Discussion
The district court instructed the jury as to first-degree murder, second-degree murder, and heat of passion voluntary manslaughter. During the instructions conference, defense counsel had also requested an instruction on sudden quarrel voluntary manslaugh ter, but the district court denied the request and instead instructed the jury only on heat of passion voluntary manslaughter. The court found that the conflict between Johnson and Whiteman had been “building all day long.” Even though the court did instruct on heat of passion voluntary manslaughter, Johnson argues that “[b]ecause tire two forms of manslaughter [sudden quarrel and heat of passion] are not separate, and because there was sufficient evidence of a ‘sudden quarrel’ to require an instruction on that theory, this court must reverse” his conviction.
The State argues alternatively that the district court’s refusal to give the requested sudden quarrel voluntary manslaughter instruction was not error because, as the judge noted during the instructions conference, he did not “see any evidence whatsoever of a sudden quarrel.” We agree. The evidence presented did not support a sudden quarrel instruction.
Standard of Review
This court has held:
“ ‘The district court “must instruct the jury on the law applicable to the defendant’s theories for which diere is supporting evidence.” State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004). “A defendant is entided to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony. [Citation omitted.]” State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003). Further, as mentioned, this court reviews the evidence in the light most favorable to the party requesting the instruction when considering the district court’s refusal to give a requested instruction. Williams, 277 Kan. at 356.’ ” State v. Anderson, 287 Kan. 325, 331, 197 P.3d 409 (2008) (quoting State v. Oliver, 280 Kan. 681, 706, 124 P.3d 493 [2005], cert. denied 547 U.S. 1183 [2006]).
In State v. White, 284 Kan. 333, 347, 161 P.3d 208 (2007), this court also held:
“ ‘ “A trial court must instruct the jury on a lesser included offense ‘where there is some evidence which would reasonably justify a conviction’ of the lesser offense. [Citation omitted.] ‘If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.’ [Citation omitted.] ‘However, the duty to so instruct arises only where there is evidence supporting the lesser crime.’ [Citation omitted.] An instruction on a lesser included offense is not required if the jury could not reasonably convict the de fendant of the lesser included offense based on the evidence presented. [Citation omitted.]” ’ (Emphasis added.) State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 (2006) (quoting State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 [2004]).”
In addition:
“[A]n appellate court cannot consider the requested instruction in isolation. Rather, the court must consider all of the instructions together as a whole. If the instructions as a whole properly and fairly state the law as applied to the facts of the case, and the jury could not reasonably be misled by them, the instructions are not reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Jackson, 280 Kan. 541, 550, 124 P.3d 460 (2005).
The Instructions
During the jury instruction conference, there was extensive discussion on sudden quarrel voluntary manslaughter and whether the evidence supported Johnson’s recommended sudden quarrel or heat of passion instruction. The district court found the evidence did not support such an instruction. As a result, it instructed the jury on first-degree murder, on second-degree murder as a lesser included offense of first-degree murder, and on heat of passion voluntary manslaughter as a lesser included offense of second-degree murder. The district court’s actual relevant instructions to the jury were:
“INSTRUCTION NO. 4
“Reginald Johnson is charged with the crime of murder in the first degree. Mr. Johnson pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That Reginald Johnson intentionally killed Amy Whiteman;
2. That such killing was done with premeditation; and
3. That this act occurred on or about August 20, 2007, in Sedgwick County, Kansas.”
“INSTRUCTION NO. 6
“If you do not agree that Reginald Johnson is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree.
“To establish this charge, each of the following claims must be proved:
1. That Reginald Johnson intentionally killed Amy Whiteman; and
2. That this act occurred on or about August 20, 2007, in Sedgwick County, Kansas.”
“INSTRUCTION NO. 7
“In determining whether Reginald Johnson is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional killing done in the heat of passion.
“If you decide Reginald Johnson intentionally killed Amy Whiteman, but that it was done in the heat of passion, the defendant may be convicted of voluntary manslaughter only.
“To establish this charge, each of the following claims must be proved:
1. That Reginald Johnson intentionally killed Amy Whiteman;
2. That it was done in the heat of passion; and
3. That this act occurred on or about August 20, 2007, in Sedgwick County, Kansas.” (Emphasis added.)
The only meaningful difference in the instructions proposed by Johnson might have resulted in a change to this actual INSTRUCTION NO. 7, where the words “done in the heat of;passion” might, based on Johnson’s proposed wording, have instead been “done upon a sudden quarrel or heat of passion.”
Johnson made no proposal as to a definition of “sudden quarrel,” which might then have been incorporated into the next actual instruction given:
“INSTRUCTION NO. 8
“As used in Instructions Numbered 4 and 7, the following definitions apply:
‘Premeditation’ means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.
‘Heat of Passion’ means any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.” (Emphasis added.)
Johnson was convicted of first-degree murder.
Whs There Error in the Instructions Given?
The evidence presented in the instant case is that Johnson and the victim had been discussing their situation and relationship all day. Based on review of the briefs and the record, there does not appear to be any evidence regarding a sudden argument or quarrel immediately preceding the victim’s death. Johnson stated:
“When Whiteman refused to leave and instead continued to provide details about the affair, Mr. Johnson’s ‘heart started beating really fast, just pounding.’ His head started to hurt, and then eveiything went black. At some point, a noise at the door roused him, and he opened his eyes. Whiteman was lying on the floor. Fearing that the noise at the door was Josiah coming home, Mr. Johnson pulled Whiteman’s body into the bedroom because he ‘didn’t want [Josiah] to see his mom like that.’ ”
Johnson did not testify to any sudden quarrel. In fact, it appears that Johnson blacked out during the actual events of the victim’s death.
In State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003), the court referenced what it saw as support for a sudden quarrel instruction in State v Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001). “Immediately [preceeding] the shooting, an argument erupted between the parties giving rise to an emotionally-charged domestic situation.” 275 Kan. at 839.
In his brief to this court, Johnson relied heavily on Graham-, however, the facts in that case are distinguishable from the facts in the instant case. In Graham, it appears that Graham’s wife let it be known throughout the day in question that she was angry with Graham. Later that day, Graham ordered her into his truck, but she refused. Graham threatened her, and the victim, Crow, intervened. Graham and Crow then had an angry exchange and Graham drove off. Sometime later, Graham returned and approached Crow, cursing and saying he was going to kill him. They got into a physical altercation, resulting in Crow being stabbed. The actual quarrel that immediately led to the murder in Graham did occur quite suddenly, and the stabbing occurred during the physical altercation that immediately followed the sudden quarrel. The Graham court noted that “in both Críbbs and this case there was some evidence of‘heat of passion’ or ‘sudden quarrel.’ Thus, in each case the defendant was entitled to have the jury consider such evidence during its consideration of the elements of attempted second-degree murder.” (Emphasis added.) 275 Kan. at 839.
This was not, however, the situation with Johnson and his wife in the instant case. As the district court noted:
“I don’t see how you can call it sudden quarrel when it’s been building all day. Sudden quarrel. Common words have their common meaning. And this has been something that has been building all day long.
“He’s already thrown her clothes out into the yard. He’s already told her son that she was leaving because she was cheating. I don’t see any evidence whatsoever of a sudden quarrel.
“This is a fight that was going on all day long, was going on all day. He throws her clothes out into the yard. It’s not a sudden quarrel because he just suddenly decides to shoot her, whether he’s aware of it or not.”
The court in State v. Coop, 223 Kan. 302, 573 P.2d 1017 (1978), conducted the most thorough analysis of sudden quarrel under Kansas case law. The court stated:
“ ‘Sudden quarrel’ per se did not arise from the common law definition. Manslaughter required only ‘heat of passion’ or ‘hot blood,’ etc. [Citations omitted.] The Kansas wording apparently comes from the federal statute:
‘Manslaughter is the unlawful killing of a human being without malice. It is of two lands:
‘Voluntary — Upon a sudden quarrel or heat of passion.’
_(18 U.S.C. § 1112[a]).
“For the moment, if we use words such as ‘sudden combat’ and ‘sudden affray to have similar meanings as ‘sudden quarrel,’ we see that for the most part it is not truly a separate creature. It is merely one of the means of provocation which brings on heat of passion. [Citations omitted.] ‘... [A] sudden combat is ordinarily considered on the same footing as other provocations operating to create such passion as temporarily to unseat the judgment.’ [Citation omitted.]
“A few jurisdictions have made affray or quarrel a part of tire statutory language. E.g., 18 U.S.C. § 1112(a); Calif. Penal Code § 192; K.S.A. 21-3403.
“In spite of the ‘or’ wording in the statutes mentioned and in the case law of other jurisdictions, only one jurisdiction has treated the terms separately. . . .
“ ‘Quarrel,’ standing alone, has been defined in a general sense:
‘In an untechnical sense, it signifies an altercation, or angry dispute, an exchange of recriminations, taunts, threats or accusations between two persons. [Citations omitted.]’ Black’s Law Dictionary 1409 (Revised 4th ed. 1968).
“No Kansas case defines the term ‘sudden quarrel.’ The few cases to even mention it do so in conjunction with ‘heat of passion’ in quoting the general definition of manslaughter, and then go on to discuss only ‘heat of passion.’ State v. Stafford, 213 Kan. 152, 515 P.2d 769; State v. Burrow & Dohlmar, 221 Kan. 745, 561 P.2d 864; State v. Pyle, 216 Kan. 423, 532 P.2d 1309.
“The same situation exists in the California and federal cases. The cases, if they mention sudden quarrel at all, just discuss heat of passion or else mix the terms together, such as ‘upon a sudden quarrel in heat of passion.’ People v. Dugger, 179 Cal. App. 2d 714, 4 Cal. Rptr. 388 (1960); see People v. Sedeno, 10 Cal. 3d 703, 518 P.2d 913, 112 Cal. Rptr. 1 (1974); People v. Best, 13 Cal. App. 2d 606, 57 P.2d 168 (1936).
“Sudden quarrel is one form, of provocation for ‘heat of passion’ and is not separate and apart from ‘heat of passion.’ The provocation whether it be ‘sudden quarrel’ or some other form of provocation must be sufficient to cause an ordinary man to lose control of his actions and his reason.
“In this case there was no evidence of sufficient provocation for defendant’s acts to entitle him to an instruction on voluntary manslaughter. His own testimony on direct examination on the issue was:
‘I remember my wife was sitting in the chair in the front room and we started talking about something. This was pretty faint. I don’t really remember well, but I do remember we started talking about something and disagreeing on something, but I don’t remember what it was we was even disagreeing on. We wasn’t a heated argument, not really what you call actually — maybe not even an argument really. It was just a disagreement on some little thing we was discussing.’
“We hold that the evidence at trial did not support an instruction on voluntary manslaughter as a lesser included offense. The trial court properly refused to give the requested instruction.” (Emphasis added.) 223 Kan. at 305-07.
The facts in Coop are similar to the facts in the instant case. Like the defendant in Coop, Johnson testified that the encounter between him and Whiteman was not heated and they were not yelhng or screaming at each other. In Coop, this court found “no evidence of sufficient provocation” such that the defendant was entitled to a separate instruction on voluntary manslaughter, let alone sudden quarrel. 223 Kan. at 307. In the instant case, there is similarly no evidence of sudden quarrel.
Further, the court in Coop held that sudden quarrel is one form of heat of passion and not separate and apart therefrom. The court described “heat of passion” as including an “ ‘emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror. It must be of such a degree as would cause an ordinary man to act on impulse without reflection.’ ” Coop, 223 Kan. at 305 (quoting State v. Ritchey, 223 Kan. 99, Syl. ¶ 1, 573 P.2d 973 [1977]).
“Heat of passion” is defined as;
“Rage, terror, or furious hatred suddenly aroused by some immediate provocation, usually another person’s words or actions. At common law, the heat of passion could serve as a mitigating circumstance that would reduce a murder charge to manslaughter. Also termed sudden heat of passion; sudden heat; sudden passion; hot blood; sudden heat and passion; furor brevis.” Black’s Law Dictionary 791 (9th ed.).
“Sudden” is commonly defined as: “1. Happening without warning; unforeseen. 2. Characterized by hastiness; abrupt; rash. 3. Characterized by rapidity; quick; swift.” The American Heritage Dictionary of the English Language 1286 (1969).
“Quarrel” is defined as: “An altercation or angry dispute; an exchange of recriminations, taunts, threats, or accusations between two persons.” Black’s Law Dictionary 1363 (9th ed.); “An angry dispute; an altercation.” The American Heritage Dictionary of the English Language 1069 (1969).
In the instant case, Instruction No. 8 defined “heat of passion” as “any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.”
Based on this instruction, an unforeseen angry altercation, dispute, taunt, or accusation could fall within this definition as sufficient provocation. While the trial judge did not utilize the term “sudden quarrel” in his instructions, we note that Kansas, along with most states, considers sudden quarrel to be one form of heat of passion. Accordingly, Instruction No. 8 was sufficiently broad to include sudden quarrel as one form of heat of passion.
Additionally, there was no evidence of sudden quarrel. During the jury instruction conference, the trial judge succinctly described the lack of any evidence supporting a sudden quarrel between Johnson and his wife.
“[Johnson] said that he became angry. . . . But ... he professed he remained calm, telling her that she just needed to leave.
“I’m telling you what I see in the evidence. Which is, he says that he remained calm, that they weren’t fighting, that he just wanted her to leave. He told her to stop, wanted her to leave. He says over and over again that he was calm.
“. . . But there was nothing about a quarrel, or some blow up, or anything like that. . . . And the only evidence that comes out about what was going on imme diately, prior to her being shot, is that comes from [Johnson], who claims he was calm. Period.. . .
“I don’t see how you can call it sudden quarrel....
"... I don’t see any evidence whatsoever of a sudden quarrel.”
There was no error in the jury instructions by the district court.
Affirmed.
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On December 7, 2007, the petitioner, Irwin S. Trester, was disciplined by indefinite suspension from the practice of law in Kansas, retroactive to October 26, 2005. In addition, he was ordered to pay the costs of the proceeding and to comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376). In re Trester, 285 Kan. 404, 172 P.3d 31 (2007). The petitioner’s suspension was based upon his conviction of several crimes related to his unauthorized practice of law in the state of California. The petitioner has never practiced law in Kansas.
On January 26, 2009, the petitioner filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On July 21, 2009, a hearing was held before a panel of the disciplinary hoard in the office of the Disciplinary Administrator.
On October 29, 2009, the panel filed its report setting out the circumstances leading to the petitioner’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. A majority of the panel concluded that the petitioner had complied with the requirements of Supreme Court Rule 219 and recommended that the petition for reinstatement be granted conditioned upon the petitioner taking and passing the Kansas bar examination and the Multi-state Professional Responsibility Examination. A dissenting member of the panel recommended that the petition for reinstatement be denied.
The court, after carefully considering the record, accepts the findings and recommendations of the majority of the panel that petitioner should be reinstated to the practice of law in Kansas; however, the court finds that reinstatement should be conditioned upon the petitioner becoming current in all delinquent continuing legal education requirements, including ethics requirements.
Dated this 16th day of February, 2010.
It Is Therefore Ordered that the petitioner be reinstated to the practice of law in the state of Kansas conditioned upon his successful completion of all continuing legal education requirements retroactive to the date of his indefinite suspension, October 26, 2005. Upon the report to the Clerk of the Appellate Courts that the petitioner has completed the required hours of continuing legal education and paid all appropriate fees, the Clerk is directed to enter petitioner s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports.
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The opinion of the court was delivered by
Nuss, J.:
Scott Dukes appeals the Court of Appeals’ affirmation of his convictions of driving while under the influence of alcohol and driving with a suspended license. Dukes argues that the district court violated his Sixth Amendment Confrontation Clause rights when it admitted into evidence breathalyzer certification documents and a certified driving record without requiring the preparers of the evidence to testify.
In State v. Dukes, 38 Kan. App. 2d 958, 961-62, 174 P.3d 914 (2008), the Court of Appeals held that Dukes’ confrontation rights were not violated because it determined that the documents were not testimonial and therefore not subject to the requirements provided in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
The issue on appeal and our accompanying holding are as follows:
Were Dukes’ Sixth Amendment Confrontation Clause rights violated when the district court admitted into evidence the breathalyzer certification and the certified driving record through witnesses who did not prepare those documents? The issue was not preserved for appeal.
Accordingly, we affirm.
Facts
In the early morning hours of September 26, 2005, Dukes drove his minivan into a ditch in Sedgwick County. He abandoned the vehicle and walked approximately 2.5 miles home. Deputy Lanon Thompson arrived and observed that the driver’s airbag had deployed and that blood was on the airbag and the driver-side door-frame. He ascertained that Dukes was the registered owner of tire vehicle and dispatched Deputy Maurico Ardanche to Dukes’ registered address.
While speaking with Dukes at his residence, Deputy Ardanche noticed that his eyes were swollen shut, blood was on his face, the bridge of his nose was lacerated, his speech was unclear, and there was a strong smell of alcohol coming from him. After receiving and waiving Miranda warnings, Dukes admitted that he was driving the vehicle and that he had consumed alcohol prior to driving. Deputy Ardanche administered a preliminary breath test that revealed a .11 blood alcohol content (BAC). He placed Dukes under arrest for suspicion of driving under the influence (DUI). While at the police station, Dukes consented to a breath test on an Intoxilyzer 5000 breath-testing machine, which revealed a .092 BAC.
At the jury trial, Deputy Jeff Bartkosld, the departmental records custodian, testified concerning the Intoxilyzer records and certification. He identified State’s Exhibit 4, the “Intoxilyzer packet,” which included his affidavit indicating the records were true and accurate copies, a certification for the Intoxilzyer machine, a solution certification, and other documents. The technician who actually signed the certification documents and performed the testing and calibration of the Intoxilyzer machine did not testify. State’s Exhibit 4 was admitted into evidence without objection.
Deputy Thompson then testified and identified State’s Exhibit 5, which contained Dukes’ truncated certified driving record. The State moved to admit Exhibit 5, but Dukes’ counsel first asked to voir dire the deputy. During voir dire, Thompson admitted that he did not have personal knowledge of the documents, that he first reviewed them the day before trial, and that he never had control of the documents. Dukes’ counsel concluded the examination by stating, “Objection to the admission, Your Honor.” The court overruled the objection and admitted State’s Exhibit 5 into evidence. Ultimately, die jury convicted Dukes of operating a vehicle with a blood alcohol content above the legal limit and driving with a suspended license.
Additional facts will be added to the analysis as necessary.
Analysis
Issue: Dukes did not preserve his claims for appeal.
Standard of Review
Dukes argues that the district court admitted State’s Exhibits 4 and 5 into evidence in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Accordingly, his arguments are subject to a de novo standard of review because he is challenging the trial court’s legal basis for the documents’ admission. See State v. Richmond, 289 Kan. 419, 426, 212 P.3d 165 (2009) (“ “When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.’ ”).
Contemporaneous Objection Rule In General
Generally, a party may not present an issue on appeal “where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.” State v. Kirtdoll, 281 Kan. 1138, 1148, 136 P.3d 417 (2006). We have recently accentuated the procedural bar established by K.S.A. 60-404, which prevents appellate review of evidentiary issues unless there was a timely and specific objection at trial. See State v. Raschke, 289 Kan. 911, 913, 219 P.3d 481 (2009); State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009); State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009) (describing the contemporaneous objection rule).
The contemporaneous objection rule requires each party to make a specific and timely objection at trial in order to preserve evidentiary issues for appeal. K.S.A. 60-404. The purpose of the rule is to avoid the use of tainted evidence and thereby avoid possible reversal and a new trial. King, 288 Kan. at 342. Recently, we stated that “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.” Richmond, 289 Kan. at 429. Specifically, in Richmond we refused to allow the defendant to object on one ground at trial and then argue another on appeal. 289 Kan. at 429-30; see State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 148 (2005).
Despite the general rule, appellate courts may consider constitutional issues raised for the first time on appeal if the issue falls within one of three recognized exceptions: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of tire case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court is right for the wrong reason. State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510 (2009). In recent years, however, we have consistently been refusing to review an evidentiaiy issue without a timely and specific objection even if the issue involves a fundamental right. See Richmond, 289 Kan. at 429-30 (expressing concern that the contemporaneous objection rule “case-law exceptions would soon swallow the general statutory rule”); State v. Hollingsworth, 289 Kan. 1250, 1256-57, 221 P.3d 1122 (2009); King, 288 Kan. at 349; see State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208 (2004). Additionally, the United States Supreme Court recently declared that the “[t]he defendant always has the burden of raising his Confrontation Clause objection” and noted that “[sjtates are free to adopt procedural rules governing objections.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327, 174 L. Ed. 2d 314, 129 S. Ct. 2527, (2009). We have acknowledged that this declaration in Melendez-Diaz was consistent with the general rule established by K.S.A. 60-404. State v. Laturner, 289 Kan. 727, 752, 218 P.3d 23 (2009).
Admission of the Breathalyzer Certification
Dukes argues that the admission of State’s Exhibit 4, the breathalyzer packet, violated his constitutional rights under the Confrontation Clause. However, at no time did Dukes object to its introduction. Consequently, Dukes faded to preserve this issue for appeal by not raising a specific and timely objection. See K.S.A. 60-404; King, 288 Kan. at 349.
Admission of the Certified Driving Record
As for Dukes’ argument that the admission of State’s Exhibit 5, the certified driving record, also violated his confrontation rights, we note that he timely objected but failed to provide the specific grounds as required by K.S.A. 60-404. After completing voir dire of Deputy Thompson, Dukes’ counsel simply stated, “Objection to the admission, Your Honor.” As previously mentioned, it is the defendant’s responsibility to “rais[e] his Confrontation Clause objection.” Melendez-Diaz, 557 U.S. 327. Additionally, in Richmond we rejected a related argument: that a defendant may object to the introduction of evidence on one ground at trial and then assert another ground on appeal. 289 Kan. at 429-30. Similarly, we reject the premise that a defendant may merely assert a general objection at trial and then specify a ground on appeal. We also reject the premise that this court should review, as here, counsel’s questions during witness voir dire and then supply defendant the specific— yet unspoken — grounds for the trial objection on appeal.
These practices would undermine the language and the purpose of the contemporaneous objection rule. See K.S.A. 60-404; Richmond, 289 Kan. at 429 (the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and thereby reduce the chances of re versible error). As a result, Dukes failed to preserve this issue for appeal.
Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed.
Davis, C.J., not participating.
Phillip C. Vieux, District Judge, assigned.
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The opinion of the court was delivered by
Luckert, J.:
Darron Edwards appeals the district court’s denial of his April 9, 2008, pro se motion to withdraw guilty pleas; his April 23, 2008, pro se supplemental motion to withdraw guilty pleas; and his June 20, 2008, pro se motion to reconsider. On appeal, he argues the district court’s denial of his motions (particularly his motion to withdraw guilty pleas) violated his due process rights, resulting in manifest injustice. Because Edwards advances this argument for the first time on appeal, his motions are untimely, and he has failed to establish manifest injustice, we affirm.
Facts
On January 17, 1992, Edwards, pursuant to a plea agreement, entered guilty pleas to aggravated criminal sodomy, aggravated burglary, attempted rape, two counts of rape, and two counts of aggravated kidnapping. Edwards waived preparation of a presentence investigation report and was sentenced the same day. State v. Edwards, 254 Kan. 489, 867 P.2d 355 (1994). Specifically, the crimes and sentences were as follows:
Count 1, aggravated kidnapping, life term
Count 2, aggravated kidnapping, life term
Count 3, rape, 15 years to life
Count 4, aggravated criminal sodomy, 15 years to life
Count 5, aggravated burglary, 5 to 20 years
Count 6, attempted rape, 5 to 20 years
Count 7, aggravated battery, 5 to 20 years
Count 8, rape, 15 years to life
Counts 1, 2, 3, and 4 were ordered to run concurrent with each other, which established one life sentence as the controlling term. Counts 5, 6, and 7 were ordered to run concurrent with each other, for a term of 5 to 10 years, but consecutive to the sentence for counts 1 through 4. The 15-years-to-life term on count 8 was ordered to run consecutive to the sentences in counts 5, 6, and 7.
Subsequent to the sentencing, Edwards has filed more than 10 appeals from adverse decisions of the district court. The basic theme of Edwards’ prior appeals — involving postconviction motions and original actions — -was to reduce the aggravated kidnapping convictions to simple kidnapping, and the primary supporting argument was that the complaint failed to allege bodily harm to the victims. As noted in a Court of Appeals’ unpublished opinion, the defendant has made numerous attempts “to put a new cover on a worn out issue.” State v. Edwards, No. 85,355, unpublished opinion filed January 25, 2002.
In his 1994 direct appeal, Edwards argued, for the first time, that the district court lacked jurisdiction over the aggravated kidnapping charges because the complaint was fatally defective for omitting the “bodily harm” element of the offense. See K.S.A. 21-3421 (Ensley). However, after oral arguments but prior to this court’s decision, Edwards’ appellate attorney withdrew Edwards’ request to be relieved from the plea agreement, the arguments for which included the argument related to the district court’s jurisdiction over the aggravated kidnapping charges. We noted the voluntary dismissal of these claims. Edwards, 254 Kan. at 489.
Thereafter, Edwards filed several motions challenging the legality of the sentences imposed for his convictions of aggravated kidnapping. He argued the district court lacked jurisdiction because the charging instrument lacked an element of the crime, depriving the court of jurisdiction over the aggravated kidnapping charges. Affirming the district court’s denial of the motions in State v. Edwards, 260 Kan. 95, 97-98, 917 P.2d 1322 (1996), this court refused to address the merits of Edwards’ jurisdiction claim, finding Edwards had abandoned the claim by withdrawing it from consideration in his prior appeal.
In the present case, Edwards filed a pro se motion to withdraw pleas, again seeking the same relief — reduction of the sentences associated with his aggravated kidnapping convictions. This time he based his argument on the underlying rationale that the State breached the plea agreement by recommending to the district court a plea of guilty on a crime (aggravated kidnapping) for which Edwards was not charged. In his supplemental motion to withdraw pleas, Edwards further argued that the plea bargain was based upon the State’s promise to recommend an “illegal sentence,” in that he was sentenced to aggravated kidnapping rather than simple kidnapping.
In the State’s response, it contended that Edwards was again challenging his aggravated kidnapping convictions based on the notion that the complaint merely charged simple kidnapping and that Edward “has raised this issue in a multitude of postconviction motions.” The State requested that the district court deny Edwards’ motion to withdraw pleas because of res judicata and waiver.
On May 2, 2008, the district court summarily denied Edwards’ motions to withdraw pleas by checking a box on a preprinted form. After first unsuccessfully attempting to file a pro se appeal, on June 20, 2008, Edwards filed a motion requesting the district court to reconsider the denial of his motions to withdraw pleas. This motion was also summarily denied by the district court. Again using a pre-printed form, the district court checked the “overruled” box, and also wrote the explanation: “Same motion as before.”
Edwards filed an untimely appeal, and we ultimately granted his motion to file the appeal out of time. This court’s jurisdiction arises under K.S.A 22-3601(b)(l) (off-grid crime; fife sentence).
Analysis
Edwards argues that the district court violated his due process rights by denying his motion to withdraw pleas, his supplemental motion to withdraw pleas, and his motion for reconsideration. Ed wards also argues that the district court’s summaiy denials were inappropriate in that the court failed to make any findings on the record with which to facilitate appellate review. He contends a remand, therefore, is necessary. Edwards’ contentions lack merit.
The standard of review for withdrawal of a guilty plea after sentencing states that a court considering a timely motion may set aside a judgment of conviction and permit a defendant to withdraw a plea to correct manifest injustice. K.S.A. 2009 Supp. 22-3210(d)(2). To be timely, any action under K.S.A. 2009 Supp. 22-3210(d)(2) must be brought within 1 year of the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal, or the termination of such appellate jurisdiction. K.S.A. 2009 Supp. 22-3210(e)(1)(A). The time limitation may be extended by the court “only upon an additional, affirmative snowing of excusable neglect by the defendant.” K.S.A. 2009 Supp. 22-3210(e)(2).
This court has consistently stated that the denial of a postsent-encing motion to withdraw a plea lies within the district court’s discretion and an appellate court should not disturb that ruling absent an abuse of discretion. See, e.g., State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009); State v, Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007). The appellant carries the burden of establishing an abuse of discretion. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006).
In arguing that the district court erred in denying his motions, Edwards continues his ongoing quest for a reduction of the aggravated kidnapping convictions. As for Edwards’ April 2008 contentions that (1) the State breached the plea agreement by informing the district court that Edwards had entered a plea of guilty on an uncharged crime (aggravated kidnapping) or (2) the plea bargain was based upon the State’s promise to recommend an “illegal sentence,” these arguments were merely a rehash of his previous attempts to request a sentence comparable to simple kidnapping. See, e.g., State v. Edwards, 281 Kan. 1334, 1336-43, 135 P.3d 1251 (2006); Edwards, 254 Kan. at 490.
The district court expressed this sentiment by indicating in its denial of Edwards’ motion to reconsider the motions to withdraw pleas that this matter involved the “[s]ame motion as before.”
Edwards must have recognized this weakness in his arguments because he does not advance on appeal any arguments related to the State’s recommendation on aggravated kidnapping or the State’s promise to recommend what was an “illegal sentence.” An issue that is not briefed by an appellant is deemed waived or abandoned. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
Despite abandoning on appeal the issues presented to the district court, Edwards argues that a remand is required because the district court failed to make any findings specific to its denial of Edwards’ motions to withdraw pleas. He complains that the district court’s mere checking of a box on a preprinted form constitutes an inadequate appellate record. It was Edwards’ motion to reconsider — in which he complained about the court’s lack of findings— which prompted the court to indicate on its denial of the motion to reconsider that the matter involved the “[s]ame motion as before.”
It is true that to facilitate a meaningful appellate review, the district court must malee sufficient findings of fact and conclusions of law on the record. State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000); Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239). This obligation is emphasized in Rule 165, which states in part that “[i]n all contested matters submitted to a judge without a jury the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.” While this rule imposes a duty on the district judge, we recently held that a party also has a burden and “must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessary.” State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009); see Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (litigant must object to inadequate findings of fact and conclusions of law before the trial court to preserve the issue for appeal).
Here, as the State points out, Edwards objected but did not do so in a timely manner. A motion to reconsider is generally treated as a motion to alter or amend under K.S.A. 60-259(f). K.S.A. 60- 259(f) requires that such motions are to be filed no later than 10 days after entry of judgment. See State v. Marks, 14 Kan. App. 2d 594, 597, 796 P.2d 174, rev. denied 247 Kan. 706 (1990). Edwards’s pro se motion was filed well beyond the 10-day period.
Regardless of whether Edwards’ motion to reconsider was timely, the district court’s notation on the denial of Edwards’ motion to reconsider — indicating that this matter involves the “[s]ame motion as before” — implies that there was no merit in Edwards’ contentions because courts have previously ruled on those issues. And while Edwards criticizes the district court for not making findings of fact, no such findings are necessary to facilitate appellate review here, especially where Edwards does not advance on appeal the same arguments presented to the district court.
Edwards takes a different approach on appeal. Placing a new “cover” on the worn-out “withdrawal of pleas” issue, Edwards argues solely that he should have been permitted to withdraw his pleas because the State violated the plea agreement “by recommending a life plus 20 plus life sentence,” which was allegedly different from the negotiated recommendation. He contends that such violation of the plea agreement has violated his due process rights and “thereby resulted in manifest injustice which should be remedied by allowing the defendant to withdraw his plea.”
Edwards’ contention fails for several reasons.
First, this argument is presented to this court for the first time on appeal. Generally, issues not raised before the district court cannot be raised for the first time on appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). This includes constitutional grounds for reversal. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009). Nevertheless, this court has recognized three exceptions to the general rule: “(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.” State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008); see Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). The State concedes that the first exception “may apply” in that the issue raised by Edwards involves a question of law arising upon proven facts. But Edwards never seeks to justify the applicability of any exception.
Second, if we consider the argument in light of the State’s concession, his argument fails because it was untimely. As previously noted, K.S.A. 2009 Supp. 22-3210(e)(l) imposes a 1-year statutory deadline. More specifically, the statute requires that a motion to correct manifest injustice by permitting a defendant to withdraw a plea
“must be brought within one year of: (A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States supreme court or issuance of such court’s final order following the granting of such petition.” K.S.A. 2009 Supp. 22-3210(e)(l).
Edwards filed his motions to withdraw pleas 14 years after his direct appeal. And although the 1-year time limitation may be extended upon an affirmative showing of excusable neglect by the defendant, Edwards has made no such showing. See K.S.A. 2009 Supp. 22-3210(e)(2).
Finally, we reject Edwards argument because there is no merit to his contention that the State violated the plea agreement. A review of the record reveals that the plea agreement set out the penalties for each crime. The plea agreement stated in part that “[ujpon successful plea to counts l-8[, the] State will recommend sentence of one life sentence plus 20 years consecutive to each other and consecutive to any [parole violation] but concurrent with all other counts in this case and concurrent to any other case(s).” (Emphasis added.)
Edwards argues that the State breached its agreement by recommending at the sentencing hearing “a life plus 20 plus life sentence.” Our review of the transcript of the sentencing hearing shows otherwise. The following colloquy occurred:
“[Court]: Now, as I read this, State is recommending that on Countfs] 1 and 2 that there would be a concurrent sentence, and that on the other cases they would just recommend that the minimum time would be granted plus one of those sentences, up to twenty to life, would run consecutive with the first two?
“[Prosecutor]: Excuse me. May I help you? What we have talked about would be Counts 1, 2, 3 and 4 maximum sentences concurrent with each other, and consecutive to Counts 5, 6 and 7, maximum concurrent, but consecutive to Count 8 maximum, which is the life plus twenty consecutive year sentence. So it’s Counts 1,2,3 and 4 maximum concurrent, consecutive to 5,6 and 7 maximum concurrent, consecutive to Count 8.” (Emphasis added.)
While there was some discussion about which sentences should run concurrently and which sentences should run consecutively (about which Edwards does not complain), the bottom line is that the State did recommend a “life plus 20 consecutive” sentence. Edwards ultimately received a controlling life sentence as anticipated. See Edwards, 254 Kan. at 490 (“Edwards received the sentences for which he had bargained”).
The district court did not abuse its discretion in refusing to allow Edwards to withdraw his pleas.
Affirmed.
Davis, C.J., not participating.
Larson, S.J., assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinaiy Administrator against Steven Ray Wiechman, of Topeka, an attorney admitted to the practice of law in Kansas in 1974.
On December 3, 2008, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On January 9, 2009, the respondent filed an answer to the formal complaint. On June 2, 2009, a hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent appeared in person and was represented by counsel. The hearing panel determined that the respondent violated KRPC 1.8(a) (2009 Kan. Ct. R. Annot. 483) (conflict of interest) and KRPC'8.4(g) (2009 Kan. Ct. R. Annot. 602) (conduct adversely reflecting on lawyer s fitness to practice law). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. In approximately 2000, the Respondent represented [D.C.] in a bank-ruptey proceeding. [D.C.] was satisfied with the Respondent’s representation regarding the bankruptcy.
“3. Thereafter, from time to time, the Respondent came into the restaurant where [D.C.] is employed. [D.C.] is and has been employed by [a restaurant] as a professional server.
“4. In 2006 and 2007, [D.C.] was injured in two separate car accidents. As a result of the accidents, [D.C.] suffers ongoing pain.
“5. Because the Respondent previously represented her and because she saw him in the restaurant from time to time, in April, 2007, when [D.C.] needed an attorney, she sought out the Respondent. [D.C.] met with and retained the Respondent to represent her.
“6. During their first meeting, [D.C.] and the Respondent also initially met with an insurance adjuster. After the insurance adjuster left the office, the Respondent and [D.C.] were alone in his office. At that time, the Respondent told [D.C.] how attracted he had always been to her.
“7. The Respondent told [D.C.] that he had noticed how much pain she was [in] and offered to give [D.C.] some all-natural joint and muscle pain lotion and some all-natural pain relievers. [D.C.] accepted the Respondent’s offer.
“8. The Respondent retrieved the lotion and the pain relievers and returned to his office. The Respondent offered to rub some of the lotion on [D.C.’s] back for her. [D.C.] reluctantly agreed. [Footnote: [D.C.’s] account of what occurred next was completely at odds with the Respondent’s account. Based upon the demeanor of the witnesses and other evidence presented to the Hearing Panel, the Hearing Panel finds that [D.C.’s] testimony is credible. The Hearing Panel, therefore, finds that the Respondent’s testimony in this regard lacks credibility.]
“9. Standing behind [D.C.], the Respondent raised the back of [D.C.’s] shirt and rubbed lotion on [her] upper back. While rubbing lotion on [her] back, the Respondent grabbed [D.C.] around her waist and pulled her torso toward the Respondent’s body. As a result, [D.C.’s] backside was pressed up against his groin.
‘TO. After the Respondent completed rubbing the all-natural joint and muscle pain lotion on [D.C.’s] back, the Respondent began talking with [her] regarding a program called Fortune High Tech. Fortune High Tech is a pyramid marketing scheme. The Respondent encouraged [D.C.] to buy into the program by paying him $300 to join up as a manager.
“11. [D.C.] told the Respondent that she would think about it. At tire end of their meeting, the Respondent hugged [D.C.] and kissed her on the bps.
“12. Later, [D.C.] received a telephone call that the employment contract was ready for her to sign. On May 8, 2007, [D.C.] returned to the Respondent’s office to sign the contract, officially retaining the Respondent to represent her interests in the two automobile accidents.
“13. During this second meeting, the Respondent and [D.C.] were again alone in his office. [D.C.] signed the contract and attempted to quickly leave the Respondent’s office. The Respondent, again, began discussing the Fortune High Tech program with [D.C.]. The Respondent, again, attempted to persuade [D.C.] to buy into the program. [D.C.] told the Respondent that she was not sure about the program. When [D.C.] stood to leave, the Respondent told her that she could not leave without giving him a hug. The Respondent again hugged and kissed [D.C.].
“14. Following the second meeting, the Respondent called [D.C.] and asked [her] if she would watch a video about Fortune High Tech. [D.C.] agreed to meet with the Respondent and watch the video. Because she did not want to be alone with the Respondent and because she thought that it would cut the meeting short, she brought her two-year old grandson with her to the meeting. The Respondent and his wife met [D.C.] and her grandson at [a restaurant] in Topeka, Kansas.
“15. During the meeting, the Respondent took [D.C.’s] grandson and went for a walk so that [D.C.] could watch ¿he video without being interrupted. After she watched the video, [D.C.] told the Respondent and his wife that she needed to think about it.
“16. The Respondent called [D.C.] following their third meeting and asked her what she thought about the Fortune High Tech program. [D.C.] told the Respondent that she was discussing it with her kids because she was not sure about joining the program. At the time the Respondent called [D.C.], she was on her way out to dinner with her daughter and her two grandsons. The Respondent offered to meet [D.C.] and her family at the restaurant. [D.C.] agreed. At the restaurant, the Respondent and his wife again discussed the Fortune High Tech program with [D.C.]. During that conversation, [D.C.] was pressured to join by the Respondent when he told her she would only have to pay $100.00 instead of $300.00. The Respondent told [D.C.] that he would pay the other $200.00 and then take the $200.00 from the settlement of the automobile accident cases. [D.C.] wrote out a $100.00 check to Mrs. Wiechman.
“17. Fortune High Tech has an unlimited number of levels. After becoming a manager, a participant can become a field trainer. In order to receive compensation, the participants down-line must purchase at least three products on a monthly basis. Thus, in order for the Respondent to make any money from [D.C.’s] participation, [D.C.] would have to purchase at least three products on a monthly basis.
“18. After [D.C.] joined the program, Mrs. Wiechman began repeatedly calling [her] to encourage her to participate in conference calls regarding Fortune High Tech. The conference calls were to tal® place at 9:00 p.m. Because [D.C.] wakes up at 4:00 a.m. to get ready for work, she was not available for conference calls at 9:00 p.m.
“19. Over time, Mrs. Wiechman grew upset with [D.C.] for not participating in tire conference calls. Eventually, [D.C.] stopped answering her telephone when the Respondent or Mrs. Wiechman called.
“20. After [D.C.] retained the Respondent to represent her interests related to the two automobile accidents, she was contacted by the insurance companies about the accidents. The insurance companies were unaware that the Respondent was representing her interests. [Footnote: [D.C.] received a copy of a letter that the Respondent purportedly sent to [D.C.’s] insurance company informing it that he would be representing [D.C.]. However, the record is void of any reference to any correspondence from the Respondent to the insurance companies of die other drivers in the two accidents.]
“21. On January 7, 2008, [D.C.] terminated the Respondent’s representation. On January 8, 2008, [D.C.] filed a complaint against the Respondent with the Disciplinary Administrator’s office.
“CONCLUSIONS OF LAW
“1. At the hearing on this matter, the Respondent stipulated that he violated KRPC 1.8 and KRPC 8.4(g). As a result, the Hearing Panel concludes, as a matter of law, that the Respondent violated KRPC 1.8(a) and KRPC 8.4(g), as detailed below.
“2. KRPC 1.8(a) provides:
‘(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; and
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) die client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.’
The Respondent violated KRPC 1.8(a) when he entered into a business transaction the Fortune High Tech program with [D.C.] without complying with the requirements of KRPC 1.8(a)(1), KRPC 1.8(a)(2), and KRPC 1.8(a)(3). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.8(a).
“3. 'It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent engaged in conduct that adversely reflects on his fitness to practice law when he (1) told [D.C.] that he has always been attracted to her, (2) raised [her] shirt, (3) applied lotion to her back, (4) grabbed her by the waist and pulled her to him so that her backside was pressing against his groin, (5) told [D.C.] she could not leave until she gave him a hug, (6) hugged and kissed [D.C.] on two occasions, and (7) pressured [D.C.] into buying into the Fortune High Tech program. The Respondent’s extreme conduct in this case seriously adversely reflects on his fitness to practice law. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to refrain from engaging in conflicts of interest. The Respondent also violated his duty to his client, to the legal profession, and to the public to maintain his personal integrity.
“Mental State. The Respondent negligently violated his duty to his client to refrain from engaging in conflicts of interest. The Respondent knowingly violated his duty to his client, to the legal profession, and to the public to maintain his personal integrity.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to [D.C.].
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factor[s] present:
“Prior Disciplinary Offenses. The Respondent has twice previously been informally admonished for violating the rules that regulate the legal profession. On January 26, 1995, the Disciplinary Administrator informally admonished the Respondent for violating KRPC 8.4(g). In that case, the Respondent hugged his client, touched his client’s buttocks, kissed his client, and informed his client that he and his wife have an understanding regarding relationships outside their marriage. Also, on April 13, 1995, the Disciplinary Administrator again informally admonished the Respondent. In this case, the Respondent violated KRPC 4.4. The Respondent failed to forward funds held in behalf of his client’s ex-wife for a period of four months. Additionally, the Respondent received checks that were to be forward[ed] to his client’s ex-wife. The Respondent placed the checks in his file and failed to forward the checks to his client’s ex-wife until after the checks were expressly stale.
“Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by selfishness. After [D.C.] became a manager in Fortune High Tech, the Respondent stood to gain financially if [D.C.] were to purchase items as part of her participation. Additionally, engaging] in physical conduct with his client was likewise selfish.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. The Respondent admitted that he solicited clients, other than [D.C.], to participate in multi-level marketing companies. Further, the Respondent acknowledged that the misconduct that gave rise to the first informal admonition also involved inappropriate touching of a female client.
“Multiple Offenses. The Respondent violated KRPC 1.8(a) and KRPC 8.4(g). As such, the Respondent committed multiple offenses.
“Refusal to Acknowledge Wrongful Nature of Conduct. While the Respondent acknowledged some of the misconduct, he refused to acknowledge the true extent of the misconduct. Accordingly, the Hearing Panel concludes that the Respondent refused to acknowledge the wrongful nature of his misconduct.
“Vulnerability of Victim. [D.C.] was extremely vulnerable to the Respondent’s misconduct. [D.C.] was injured and unsophisticated in legal matters. She went to the lawyer that had previously helped her. Further, despite the fact that the Respondent knew that [D.C.] had limited income, the Respondent pressured her into joining Fortune High Tech and spending $100.00 on something that she did not want or need.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in 1974. At the time of the hearing, the Respondent had been practicing law for 35 years. As such, the Respondent has substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys the respect of his peers as evidenced by several letters received by the Hearing Panel as well as tire testimony of Alan Alderson.
“Remoteness of Prior Offenses. The Respondent’s previous misconduct was remote in time, but not in character, to the present offenses.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.33 Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.’
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
‘8.2 Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.
‘8.3 Reprimand is generally appropriate when a lawyer:
(a) negligently violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be censured and that the censure be published in the Kansas Reports. The Disciplinary Administrator also recommended that the Respondent be ordered to refrain from meeting with female clients unless another female person is present throughout the meeting. Finally, the Disciplinaiy Administrator recommended that the Respondent be required to undergo a follow-up evaluation with Dr. Hough to ensure that the Respondent refrains from touching female clients in an inappropriate manner. The Respondent joined in the Disciplinary Administrator’s recommendation of published censure with conditions.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, a majority of the Hearing Panel recommends that the Respondent be suspended from the practice of law for a period of six months. Additionally, a majority of the Hearing Panel recommends that before the Respondent is reinstated to the practice of law, that the Respondent undergo a reinstatement hearing before a Hearing Panel. At the reinstatement hearing, the Respondent should be required to establish how he has addressed the issue of inappropriate touching of female clients. The Respondent’s evidence should include testimony from a treating psychologist or psychiatrist regarding this matter.
“Costs are assessed against the Respondent in an amount to be certified by the office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (citing In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321).
The respondent filed no exceptions to the panel’s final hearing report. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). Upon our review of the entire record we conclude that the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We therefore adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation is advisory only and shall not prevent the court from imposing a different discipline. In re Cline, 289 Kan. 834, 846, 217 P.3d 455 (2009); Supreme Court Rule 212(f).
We consider the violations of respondent to be serious as they relate to this court’s responsibility to protect the citizens of this state from the conduct exhibited in respondent’s case.
Respondent’s actions in practically forcing his client to invest in a pyramid scheme wholly unrelated to the best interest of his client and his legal representation violated KRPC 1.8(a)(3). Respondent’s client had limited means and was unsophisticated in legal matters. She sought legal help and in the process of rendering assistance, respondent “pressured her into joining Fortune High Tech and spending $100.00 on something that she did not want or need.” Respondent’s client was vulnerable and respondent exploited her vulnerability.
During the course of his representation, respondent engaged in conduct that adversely reflects on his fitness to practice law. KRPC 8.4(g). Respondent again exploited the vulnerability of his client when he
“ ‘(1) told [D.C.] that he has always been attracted to her, (2) raised [her] shirt, (3) applied lotion to her back, (4) grabbed her by the waist and pulled her to him so that her backside was pressing against his groin, (5) told [D.C.] she could not leave until she gave him a hug, (6) hugged and kissed [D.C.] on two occasions, and (7) pressured [D.C.] into buying into the Fortune High Tech program.’ ”
The above allegations are admitted by respondent and relate directly to our responsibility to protect the public interest of those citizens dealing with licensed attorneys in this state.
Our responsibility also extends to respondent in weighing the violations established and our consideration of discipline as it relates to respondent’s best interest.
We note that respondent enjoys the respect of his peers as evidenced by several letters of support submitted on his behalf. We also acknowledge that respondent was favored with personal testimony supporting his practice and reputation.
We also note that during 1995 respondent received two informal admonishments for his conduct in the practice of law. While this previous misconduct is remote, one informal admonishment be comes important because the misconduct involves similar conduct to the violation established in this case.
“The Respondent has .. . been informally admonished for violating the rules that regulate the legal profession. On Januaiy 26,1995, the Disciplinary Administrator informally admonished the Respondent for violating KRPC 8.4(g). In that case, the Respondent hugged his client, touched his client's buttocks, kissed his client, and informed his client that he and his wife have an understanding regarding relationships outside their marriage.”
We acknowledge that a minority of the hearing panel recommended published censure as opposed to the majority’s recommendation for suspension from the practice of law. The concurring and dissenting opinion stated: “Since under Standard 4.33 reprimand is generally appropriate for Respondent’s KRPC 1.8(a) violation, the majority of the panel is apparently recommending suspension because of the KRPC 8.4(g) violation. I find Standard 8.3(b) applicable to this violation.”
Standard 8.3(b) states that reprimand is appropriate when a lawyer “has received an admonition for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.” ABA Standard 8.3(b).
However, the majority of the panel clearly stated that it considered not only Standards 4.33 and 8.3 but also 7.2, which states: “Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a client, the public, or the legal system.” (Emphasis added.)
The hearing panel found that “Respondent negligently violated his duty to his client to refrain from engaging in conflicts of interest. The Respondent knowingly violated his duty to his client, to the legal profession, and to the public to maintain his personal integrity.” (Emphasis added.) Based on these findings, the dissenting panel member is correct that reprimand under Standard 4.33 is the appropriate discipline for the violation of KRPC 1.8(a) (2009 Kan. Ct. R. Annot. 483). However, the dissenting panel member failed to consider that the panel found respondent knowingly violated KRPC 8.4(g) to which Standard 7.2 is appropriate.
Finally, we would note that in his argument before this court, respondent acknowledged that his misconduct resulted from poor judgment, ignorance, and stupidity. While this may be true, it falls short of an acknowledgment of the true extent of his misconduct and the impact such misconduct had upon an extremely vulnerable client.
We remain concerned about the public interest and are not satisfied with respondent’s plan to address the violations that occurred. Respondent has offered the following: He will have no one-on-one meetings with female clients; he will only hold meetings during regular office hours; a female staff member will sit in on all meetings with clients; he will only meet with female clients in his first floor conference room with a female staff member close by; and he will not offer marketing projects to clients.
We acknowledge that all of the above should be in place when respondent again seeks to practice law in this state. We also think it wise for respondent to follow a recommendation of the Disciplinary Administrator to “undergo a follow-up evaluation with Dr. Hough to ensure that the respondent refrains from touching female clients in an inappropriate manner.”
For the reasons set forth, we reject the panel dissent’s recommendation of published censure. We also reject the recommendation of the Disciplinary Administrator. We agree with the panel majority that suspension is the more appropriate discipline and determine that a 1-year suspension is the appropriate discipline, based upon a consideration of the entire record, the public interest, and the interest of respondent.
Conclusion and Discipline
It Is Therefore Ordered that Steven Ray Wiechman be suspended from the practice of law in the state of Kansas for a period of 1 year, effective the date of this opinion in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272) for violations of KRPC 1.8(a) (2009 Kan. Ct. R. Annot. 483) and KRPC 8.4(g) (2009 Kan. Ct. R. Annot. 602).
It Is Further Ordered that the respondent shall comply with Rule 218 (2009 Kan. Ct. R. Annot. 361) and Rule 219 (2009 Kan. Ct. R. Annot. 376), including a hearing, prior to readmission to the practice of law.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
|
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The opinion of the court was delivered by
Rosen, J.:
Eddie E. Trevino entered a plea of nolo contendere to one count of aggravated indecent liberties with a child pursuant to a plea agreement with the State. The State agreed not to oppose his motion for durational departure. The district court sentenced him to life with no possibility of parole for 25 years. He appeals, contending that his sentence is unconstitutionally cruel and unusual and that the district court abused its discretion in denying his motion for departure.
Trevino was charged with two counts of aggravated indecent liberties with a child, stemming from allegations made by his granddaughters. His first preliminary hearing was prematurely terminated when his counsel realized the existence of a conflict that would interfere with his representation of another client. At Trevino’s second preliminaiy hearing, one of his granddaughters testified that there was physical contact between the two but he had not touched any of her “private parts. ” The hearing was interrupted when his second granddaughter had difficulty testifying and was then terminated when he chose to waive the remainder of the hearing.
After negotiations with the State, Trevino agreed to plead nolo contendere to one count of aggravated indecent liberties with a child pursuant to K.S.A. 21-3504(a)(3)(A), characterized on the written plea agreement as a severity level 3 person felony with a presumptive sentence of life with no possibility of parole for 25 years. In return, the State agreed to dismiss the second count and to make the following sentencing recommendation:
“Due to the harm caused in this case being less than typically associated with such an offense, the State will not oppose Defendant’s request for a durational departure under K.S.A. (2006 Supp.) 21-4643(a)(2)(d) to the top number in the guidelines gridbox for a severity level 3 person felony ....
“The State agrees that the substantial and compelling basis for the durational departure is the degree of harm associated with this crime was less than typical for such crime.”
The plea agreement also left Trevino free to seek a dispositional departure but indicated that the State would oppose such a request. There is no indication in the plea agreement that the defendant would argue the unconstitutionality of the life sentence.
Trevino also filed a Motion to Impose Departure Sentence in which he moved the court to impose a durational departure on the basis of three alleged substantial and compelling reasons:
“1. That a shorter prison sanction will serve community safety interests by promoting offender reformation more than incarceration.
“2. That the State supports a departure sentence due to the harm caused in this case being less than typically'associated with such an offense.
“3. That die defendant is 50 years old and has one felony conviction from 1993, over 15 years ago.”
Trevino entered his plea on December 10, 2007. A sentencing hearing took place on February 8, 2008, before Judge John J. Kis-ner who had not had previous involvement in the case. Judge Kis-ner indicated he had serious reservations about following the plea agreement and continued the sentencing in order to review the preliminary hearing transcripts and have the defendant evaluated. In the intervening months, Trevino sent a letter to the judge proclaiming his innocence, which was treated as a pro se motion to withdraw his plea; however, at the hearing scheduled on the motion, he chose to withdraw the motion.
Sentencing took place on June 25, 2008. Both the State and Trevino argued in support of Trevino’s durational departure motion. Judge Kisner indicated that he had reviewed the affidavit of probable cause and the preliminary hearing transcripts and could not find substantial and compelling reasons to depart. He denied the motion to depart and sentenced Trevino to life in prison with parole eligibility after 25 years.
Trevino filed a notice of appeal from the sentence, raising the denial of the motion for departure and, for the first time, “challenging the Constitutionality of the penalty provided in K.S.A. 21-3504, commonly known as Jessica’s Law.” Jurisdiction is in this court pursuant to K.S.A. 22-3601(b)(l) — conviction of an off-grid crime and imposition of a life sentence.
Trevino first alleges that the life sentence imposed upon him under K.S.A. 2006 Supp. 21-4643(a)(l)(C) violates the constitutional prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, and Section 9 of the Kansas Constitution Bill of Rights. The parties agree that this issue presents a question of law over which the court exercises unlimited or de novo review, citing State v. Tolen, 285 Kan. 672, 673, 176 P.3d 170 (2008) (constitutionality of a statute is a question of law over which court exercises unlimited review), and State v. Freeman, 223 Kan. 362, 368, 574 P.2d 950 (1978) (applying de novo analysis of constitutionality of sentence).
Trevino acknowledges that he did not object to the constitutionality of his sentence in the district court but maintains that this court may review his claim under exceptions to the rule barring review set out in State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982). Those exceptions allow review in the following circumstances:
“(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
“(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
“(3) [When] a judgment of a trial court may be upheld on appeal [if correct] even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.” State v. Puckett, 230 Kan. at 598-99.
He argues his case falls within the first and second exceptions because the issue only involves a question of law and relates to the fundamental right that prohibits cruel and unusual punishment. Trevino then sets out the three-factor test adopted by this court in Freeman, 223 Kan. at 367, to determine whether the length of a sentence offends the constitutional prohibition against cruel and unusual punishment and attempts to argue that the three factors lead to the conclusion that the sentence in this case is unconstitutional.
This court considered an identical argument in State v. Ortega-Cadelan, 287 Kan. 157, 159-61, 194 P.3d 1195 (2008), and con- eluded that the failure of the appellant to raise the issue and develop the record below precluded its consideration because the determinations made necessary by Puckett and, ultimately, by Freeman require the court to analyze the merits of the case in a way not possible when the trial court was not allowed the opportunity to address the issue. Trevino attempts to distinguish his case by pointing out that the prosecutor made a brief statement on the record as a factual basis for the plea. That statement, however, entailed litde more than a proffer that the appellant and the victim were clothed at the time of the crime. It did not specify sufficient factual detail to allow for the Mnd of examination of the facts of the crime and the particular characteristics of the defendant that Ortega-Cadelan notes is required by the first prong of the Freeman test. Without the necessary record, Ortega-Cadelan concluded that review of the constitutionality of the appellant’s sentence was not possible. The same result has since been reached in a number of cases. See State v. Mondragon, 289 Kan. 1158, 220 P.3d 369 (2009); State v. Easterling, 289 Kan. 470, 485-87, 213 P.3d 418 (2009); State v. Spotts, 288 Kan. 650, 652-54,206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, 159-61, 199 P.3d 1265 (2009).
A different conclusion was reached in State v. Seward, 289 Kan. 715, 718-21, 217 P.3d 443 (2009). There the constitutionality argument was reached.
“In Seward, the defendant mentioned his cruel or unusual punishment argument during plea negotiations, included it in his written downward departure motion, and reiterated the claim on the record at the sentencing hearing. This court held the issue was sufficiently raised before the district court and that the district court should have made the necessary findings. Seward, 289 Kan. at 720. After discussing the relative responsibilities of the district court and the defendant to assure there are sufficient findings for appellate review, [this court] remanded the case.” Mondragon, 289 Kan. at 1164.
Trevino’s case, however, unlike Seward’s, is indistinguishable from Mondragon’s, about which we said:
“In contrast to the record in Seward, which reflected efforts by the defendant to raise the issue before the district court, in this case we can find no mention of the phrase ‘cruel or unusual punishment’ in the record of proceedings before the district court. Because there was no effort before the district court to present the issue of whether a Jessica’s Law sentence is cruel or unusual, the issue cannot be raised for the first time on appeal.” Mondragon, 289 Kan. at 1164.
As in Ortega-Cadelan, Easterling, Spotts, Thomas, and Mon-dragon, the appellant in this case did not sufficiently raise the constitutionality issue and develop the record below to allow this court to consider it.
The second issue raised by Trevino alleges that the district court should have granted his motion for a durational departure. An abuse of discretion standard applies to this court’s review of the district judge’s determination that mitigating circumstances cited by the defendant did not amount to substantial and compelling reasons for departure from the mandatory terms of imprisonment required by K.S.A. 2006 Supp. 21-4643. In State v. Robison, 290 Kan. 51, 55, 222 P.3d 500 (2010), we said:
“[T]he established standard of review is one of abuse of discretion. See Mondragon, State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), and Thomas, wherein we stated:
‘On appellate review of this process, we apply a broad abuse of discretion standard because this issue involves the district court’s consideration and weighing of mitigating circumstances. Under this standard “ ‘[jjudicial discretion is abused when no reasonable person would take the view adopted by the district judge.’ ” Ortega-Cadelan, 287 Kan. at 165 (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005] ); see State v. Jones, 283 Kan. 186, 215-16, 151 P.3d 22 (2007) (same broad abuse of discretion standard applies to appellate review of weighing of aggravating and mitigating circumstances before imposing hard 50 sentence).’ Thomas, 288 Kan. at 164.”
Under the statute governing Trevino’s sentence, a first-time offender who is 18 years old or older and convicted of aggravated indecent liberties with a child under the age of 14 must be sentenced to a mandatory life sentence with a minimum of not less than 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 2006 Supp. 21-4643(d). The statute specifies a nonexclusive list of mitigating factors that a judge may consider in determining whether substantial and compelling reasons for departure exist: (1) the defendant has no significant criminal history; (2) the crime was committed while the defendant was under tire influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the defendant’s participation was relatively minor; (4) the defendant acted under extreme distress or substantial domination of another person; (5) the defendant’s capacity to appreciate the criminality of his or her conduct or conform such conduct to the requirements of the law was substantially impaired; and (6) the defendant’s age at the time of the crime. K.S.A. 2006 Supp. 21-4643(d)(l)-(6).
Trevino argues only that the district court abused its discretion when it rejected his argument that the degree of harm inflicted upon the victim in this case was less than in the usual aggravated indecent liberties case and that amounted to a substantial and compelling reason for departure. At sentencing, after hearing arguments in support of the departure motion, Judge Kisner made clear that he had reviewed all the information available to him in the record and had been unable to conclude that the harm to the victim in this case was any less than in any other case. He noted the mitigating circumstances that the defendant had little criminal history and that the State had supported the motion for departure as part of the plea negotiations, but concluded that the relationship of the appellant to the victim was one of great trust, precluding him from concluding that departure was warranted. Trevino presents no persuasive argument to cause us to conclude that the sentencing judge abused his discretion in denying the motion for a durational departure.
The judgment of the district court is affirmed.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against David J. Harding, of WaKeeney, an attorney admitted to the practice of law in Kansas in 1974.
On March 23, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On April 8, 2009, the respondent filed an answer to the formal complaint. On May 7,2009, a hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent appeared in person and was represented by counsel. The hearing panel determined that the respondent violated KRPC 1.6 (2009 Kan. Ct. R. Annot. 468) (confidentiality) and KRPC 1.13 (2009 Kan. Ct. R. Annot. 501) (organization as client). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. From 1978, until February 6,2007, the Respondent was the City Attorney for the City of WaKeeney, Kansas (hereinafter ‘the City’). Additionally, the Respondent has served as County Attorney for Trego County, Kansas (hereinafter ‘the County’) for much of that time.
“3. In 1978, the Respondent requested that he be allowed to participate in the Kansas Public Employees Retirement System (hereinafter ‘KPERS’) by virtue of his employment with the City. The City Council considered and approved the Respondent’s request.
“4. In addition to the City, beginning in 1978, the Respondent also participated in the KPERS program via his employment with the County.
“5. The Respondent’s fee agreement with the City required the City to pay the Respondent a monthly retainer of $610. On pages 69-70 of Disciplinary Administrator’s Exhibit 5, the Respondent explained what the City received for payment of the retainer. In addition to the retainer, dre Respondent charged the City on an hourly basis for items not included in the retainer.
“6. In 2006, the Respondent requested that the City pay his hourly fees through payroll so that the hourly fees could be considered KPERS income.
“7. As a result of his request, Charlene Neish, a City Councilwoman, ‘began to do research on the subject.’ Ms. Neish believed That the City had been contributing to KPERS for [the Respondent] for over twenty-seven years even though he was not eligible.’
“8. At the September 5, 2006, City Council meeting, a City Council member made a motion to leave the Respondent on KPERS widi the City. The motion died for a lack of a second. The City Council agreed, however, to request additional information from KPERS.
“9. At some point, the Respondent discovered that certain City Officials were using City property or allowing their associates to use City property for dieir personal benefit.
“10. On September 20, 2006, the Respondent called Tom Drees, County Attorney for Ellis County, Kansas. The Respondent disclosed information to Mr. Drees regarding his clients which he had obtained by virtue of his attorney/client relationship. The Respondent discussed whether the City Officials had violated the law. Mr. Drees instructed the Respondent to call the Disciplinary Administrator’s office to discuss the Respondent’s obligations to the City and City Officials.
“11. On October 3, 2006, the Respondent called Alexander Walczak, Deputy Disciplinary Administrator. Mr. Walczak advised the Respondent to start by discussing the issues regarding illegal conduct with the Mayor and the City Administrator.
“12. That same day, the Respondent arranged to meet with the Mayor and the City Administrator. At that meeting, the Respondent confronted the Mayor with some of the allegations of illegal conduct that concerned him. Specifically, the Respondent discussed whether the Mayor had allowed his family and friends to use City equipment.
“13. The Respondent’s allegations upset the Mayor. During the meeting, the Mayor offered to pay $50 for the use of the City equipment. The Respondent refused to accept die $50 and informed the Mayor that there was going to be an inquisition to investigate possible criminal charges.
“14. As a result of Ms. Neish’s research, prior to the October 3, 2006, City Council meeting, the City removed the Respondent from participation in KPERS.
“15. According to Laurie McKinnon of KPERS, in order to be eligible for participation in KPERS, a public employee must work 1,000 hours or more per year. Ultimately, Ms. McKinnon concluded that the Respondent was eligible to participate in KPERS in all but the following years: 1978,1988,1989,1990,1991, and 1992.
“16. At the October 3, 2006, City Council meeting, the City Council held a discussion regarding the usage of cell phones provided by the City to City Officials. Apparently, the Mayor and the Chief of Police had exceeded their allotted minutes and, as a result, the City incurred additional charges. The Respondent did not participate in the discussion but obtained a copy of the cell phone records at the conclusion of the meeting.
“17. Following the October 3, 2006, City Council meeting but sometime before November 13, 2006, the Respondent met with Mr. Drees because the Respondent had concluded that someone should look into purported wrongdoing by the City Officials, including Ms. Neish, the Mayor and the Chief of Police. Mr. Drees agreed to investigate the purported wrongdoing.
“18. During that meeting, the Respondent provided Mr. Drees with information and documents relevant to Mr. Drees’ investigation. In so doing, the Respondent provided Mr. Drees with confidential information that he obtained through his attomey/client relationship with tire City and the City Officials. The Respondent provided Mr. Drees with a copy of the cell phone records the Respondent obtained at the conclusion of the October 3,2006, Ciiy Council meeting.
“19. During the November 13,2006, Trego County Commission meeting, the County Commissioners voted to appoint Mr. Drees as a Special Prosecuting Attorney.
“20. On January 19, 2007, Mr. Drees filed an inquisition investigating the actions of Ms. Neish, the Mayor, and the Chief of Police.
“21. At the January 29, 2007, City Council meeting, the City Council voted to cease paying the Respondent the monthly retainer. Instead, the City Council agreed to pay the Respondent $100 per hour. Additionally, at that meeting the Mayor and the Chief of Police presented the City Council with letters requesting that the City pay their costs associated with defending themselves in the inquisition.
“22. On January 31, 2007, Ms. Neish sent a letter to the City Administrator asking the City to pay her costs associated with defending herself in the inquisition. The Respondent obtained a copy of Ms. Neish’s letter and immediately forwarded the letter to Mr. Drees and Mike Com of the Hays Daily News.
“23. At the February 6, 2007, City Council meeting, Ms. Neish ‘discussed with tlie Governing Body having an audit performed for any potential liability concerning the City’s withholding on past KPERS for non-qualified individuals.’ The City Council voted to have an audit performed. The Mayor discussed the Respondent’s conflict of interest and the Respondent’s failure to provide legal advice on matters the Respondent was investigating. Thereafter, the City Council voted to appoint a Special City Attorney and a Special City Prosecutor for an interim period.
“24. On March 8, 2007, the Western Kansas World published a letter the Respondent wrote. The confidential information included in his letter to the editor was obtained by the Respondent through his attomey/client relationship. The Respondent’s letter provided, in pertinent part, as follows:
‘3. Ms. Neish states to Mr. Millard that KPERS for the City Attorney is not ‘allowed’ or is ‘illegal.’ FACT: In 1979 the City of WaKeeney deemed the City Attorney position to be a KPERS covered position. In September of2006, after 27 years, MS. [sic] Neish determined that it was not a KPERS covered position. The City Attorney position is a LEGAL covered KPERS position, and if you doubt this, please feel free to call Laurie McKinnon, General [Counsel] for KPERS at.... I also have a copy of her letter and the statute cited. To my knowledge Mr. Millard has never contacted KPERS for an unbiased ruling.
‘5. Originally the use of die city truck by an employee of Ms. Neish for approximately diree weeks and use of a city truck by the Mayor for his son-in-law were the only known transgressions. The Mayor, at a meeting with the City Administrator and myself, was advised to stop such actions. The Mayor did not deny the use of the trucks and the only reason he gave was that it was owed because of the numerous hours of donated time to the city by this individual. At no time did the Mayor state that city council had given prior approval. The Mayor did slap down a $50 bill on the table. Neither the city [sic] Administrator nor myself have the authority to accept the money as a settlement.
‘6. Ms. Neish did try to rewrite the city minutes six months after the fact. The City Administrator and myself talked to one council member who knew that the truck was being used, but she could not remember whether the conversation took place before, during, or after the meeting. She did not know a city employee would be used to dump the truck. The City Administrator Hardy Howard, Council member Bob Funk and myself do not recall a discussion concerning the use of a truck by Ms. Neish’s employee at a City Council meeting. The city minutes DO NOT reflect any action by council. The City Administrator ordered the truck to be returned.
‘7. The Chief of Police did pay $60 in 2002 for some city rock. In 2006, on a Saturday evening, the Chief of Police loaded city rock on private equipment and dumped it on the alley beside the Methodist Church and in a roadway behind the trees north of the Church. The alley is also adjacent to the Chief of Police’s home. The Mayor at a city council meeting admitted giving the Chief of Police permission to do this. It would be worthwhile to drive the alley and roadway adjacent to his home and behind the Methodist Church.
‘8. The Mayor did give away a usable fire hydrant. When asked about the fire hydrant by the City' Administrator, he denied knowledge. Once the location of the fire hydrant was discovered, the City Administrator told him to return it to the possession of the City. The Mayor did as he was told and returned tire fire hydrant to the City or as Mr. Millard states, he corrected his actions.
‘9. City cell phones were issued to the Mayor, Police Chief, City Administrator and City Superintendent. I admit that I did not tell them that the cell phones could not be used for private use. I asked for all cell phone records. The city has those records for your inspection and I would also malee those records available. The times and number of calls to Ms. Neish are of special significance.
TO. On August 23, 2006, the Mayor pled guilty to giving alcohol to a work-release prisoner under his supervision. By the reasoning in Mr. Millard’s editorial, since I, in my capacity as City Attorney, did not advise Mayor Deutscher that he should not give alcohol to a prisoner, I would be responsible for the Mayor’s action! Some things just go without saying and common sense should prevail.
‘Special privileges have been given to some, but not to all. No citizen should stand above another.
“25. Shortly before the election in 2007, the Respondent received a letter and ‘reviewed it for accuracy.’ After receiving and reviewing it, the Respondent sent the letter to the residents of WaKeeney, Kansas. The letter provided, in pertinent part, as follows:
‘. . . At this point, the “open public City Council Meeting” is a joke. It will remain a joke until the irresponsible officials are removed that believe that two or three of them can malee better decisions in private for the citizens of WaKeeney than the Council as a whole could make in an open, honest public meeting. These irresponsible public officials have made a mockery of “public” City Council Meetings. They have stacked the deck against ever having an honest, open City Council meeting by allowing themselves the right to “rig” the issues and the outcome in private. . . .
‘How many of us could keep our jobs if we provided alcohol to a work release prisoner in our custody and allowed them to drink it at the City Building? Mayor Kenneth Deutscher did and he’s still here!! This past winter, during the ice storms, Mayor Deutscher and Council Member Neish made the decision to purchase meals for Deutscher’ [sic] son-in-law, Kenny Nowlin, and the rest of his Western Coop Electric Crew OUT OF CITY FUNDS!! The meals were delivered to Ransom with a city vehicle. It wasn’t like Western Coop Electric left them high and dry with nothing to eat. During those storms, Western provided food for all of their crews, every day. If the food Western provided wasn’t quite what Mr. Nowlin wanted to eat, and if Mayor Deutscher and Ms. Neish wanted to treat them to something else, that’s fine, but the money should have come out of their personal pockets and not City funds. These are just two examples of poor judgment and BAD decisions.
‘Other bad decisions already in the Western Kansas World: (1) The disputed use of a city truck [sic] Ms. Neish’s employee; (2) The admitted use of city equipment by the Mayor and his son-in-law; (3) Giving permission to the Chief of Police Terry Eberle to load city rock onto private equipment to rock the alley around the Eberle property; (4) The Mayor giving away a city owned, usable fire hydrant making it necessary for the city to purchase another one; (5) Unauthorized private use of city cell phones by Mayor Deutscher and Chief of Police Terry Eberle.
‘No one is tiying to take away Mayor Deutscher s good accomplishments during his tenure as Mayor of WaKeeney, however, the good from the past cannot outweigh the really bad, irresponsible decisions he is making NOW. Accountability is part of making decisions, whether good or bad. Mayor Deutscher has readily accepted credit for the good but, so far, accountability for his poor judgment and bad decisions has not happened.
‘On Tuesday April, [sic] 3, 2007, we have the opportunity to go to the polls. If you are OK with bad decisions and backroom politics then keep what we’ve got and don’t complain. If you think it’s time to bring OUR city business back into an open public forum, taire advantage of your right to vote and vote for CHANGE. Vote to .elect responsible public officials that want to serve, and believe they should serve, in full view of the public, like it was always meant to be. At this point, changing public officials is the only way to stop the irresponsible behavior, poor judgment, and backroom politics that is currently common practice in the City of WaKeeney.’
“26. In the election, the Mayor was defeated.
“27. On April 27, 2007, the Mayor filed a complaint against the Respondent with the Disciplinary Administrator’s office. On May 2, 2007, Ms. Neish filed a complaint against the Respondent with the Disciplinary Administrator’s office. On May 18, 2007, the Chief of Police filed a complaint against the Respondent with the Disciplinary Administrator’s office.
“CONCLUSIONS OF LAW
“1. Based upon the Respondent’s stipulations and the above findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.6 and KRPC 1.13, as detailed below.
“2. KRPC 1.6 provides:
‘(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
‘(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a crime; or
(2) to comply with requirements of law or orders of any tribunal; or
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.’
The Respondent violated KRPC 1.6 when he repeatedly disclosed confidential information that he obtained via his attomey/client relationship with the City and City Officials. Thus, the Hearing Panel concludes that the Respondent violated KRPC 1.6.
“3. The Kansas Supreme Court has adopted a rule to specifically address the situation where an attorney has an organization for a client. That special rule [KRPC 1.13] provides:
‘(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
‘(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessaiy in the best interest of tire organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.
‘(c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer shall follow Rule 1.16.
‘(d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
‘(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. KRPC 1.13.’
The Respondent failed to take measures which would minimize disruption of the City and reduce the risk of revealing confidential information when he disclosed confidential information to Mr. Drees, to Mr. Com, and to the newspaper in his letter to the editor. The Respondent’s conduct resulted in substantial injury to the City. The Respondent failed to proceed in a manner that was in the best interest of the City. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.13(b). Further, the Respondent violated KRPC 1.13(b)(3) when he failed to try to rectify tire misconduct within the City by referring the matter to the highest authority in the City. Finally, the Respondent violated KRPC 1.13(d) when he failed to advise Ms. Neish, the Mayor, and the Chief of Police that his representation of the City might be adverse to diem. Accordingly, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.13.
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are tire duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his client.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factor present:
“Selfish Motive. The Respondent’s conduct was motivated by selfishness. The Respondent viewed Ms. Neish’s investigation into his KPERS eligibility as a personal attack. The Respondent selfishly acted in response to the perceived attack.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by revealing confidential information on more than one occasion.
“Vulnerability of Victim. Ms. Neish, the Mayor, and the Chief of Police were vulnerable to the Respondent’s misconduct as they relied on the Respondent to act as their lawyer.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in the state of Kansas in 1974. At the time the misconduct began, the Respondent had been practicing law for more than 32 years. As such, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. At the hearing on this matter, the Respondent freely acknowledged that he violated KRPC 1.6 and KRPC 1.13.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys tire respect of his peers as evidenced by a number of letters received by the Hearing Panel.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.22 Suspension is generally appropriate when a lawyer knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client.
‘4.23 Reprimand is generally appropriate when a lawyer negligently reveals information relating to representation of a client not otherwise lawfully permitted to be disclosed and this disclosure causes injury or potential injury to a client.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be censured and that the censure be published in the Kansas Reports. The Respondent joined in the recommendation made by the Disciplinary Administrator.
“Notwithstanding the mitigating factors, it appears that the appropriate recommendation in this case would be for a suspension from the practice of law for a period of 90 days. However, the mitigating factors are considerable and, as a result, the Hearing Panel accepts the recommendation made by the parties and unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.
“Costs are assessed against the Respondent in an amount to be certified by the office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (citing In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321).
The respondent filed no exceptions to the panel’s final hearing report. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). Upon our review of the entire record we conclude that the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We therefore adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation is advisory only and shall not prevent the court from imposing a different discipline. In re Cline, 289 Kan. 834, 217 P.3d 455 (2009); Supreme Court Rule 212(f) (2009 Kan. Ct. R. Annot. 337).
The respondent knowingly violated his duly to his client causing actual injury. His conduct was motivated by anger and selfishness. On more than one occasion he publicly revealed confidential information obtained while representing his client. Through his efforts some of this information surfaced in the local newspaper. The respondent through the special prosecuting attorney was able to initiate an inquisition concerning activities of certain ciiy officials. The inquisition was subsequently dismissed by the district court. Within the community of Wakeeney, respondent’s client suffered injury and certainly the reputations of some council members were damaged by the misconduct of the respondent.
The respondent engaged in his misconduct because the City made inquiries as to whether he qualified for participation in KP-ERS. The inquiry threatened his KPERS benefits, and respondent set out to undermine the reputation of certain city officials responsible for the KPERS inquiry. There is no doubt that his conduct injured his client.
The Disciplinary Administrator recommends a published censure. Respondent joins in that recommendation. However, the panel correctly concludes that, based upon ARA Standard 4.22, suspension from the practice of law is a more appropriate discipline based upon the intentional misconduct of the respondent. We agree with this determination but disagree with the ultimate recommendation of the panel that the discipline be a published censure because of the considerable mitigating circumstances.
We acknowledge that numerous letters of support from attorneys demonstrate that respondent enjoys the respect of his peers, that he has practiced law for 32 years without any disciplinary action, and that he acknowledged his wrongful conduct and apologized to his client for his misconduct. We are not convinced that die mitigating circumstances warrant published censure where the activity of respondent calls for suspension from the practice of law. We are concerned about the harm done, the respondent’s disclosure of confidential information, and the damage caused to the reputations of some of the city officials. We may not ignore respondent’s angry and selfish response. A minority of the court would impose a greater discipline.
Conclusion and Discipline
It Is Therefore Ordered that David J. Harding be suspended for a period of 90 days from the practice of law in the state of Kansas, effective the date of this opinion in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Rule 218 (2009 Kan. Ct. R. Annot. 361).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
|
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On January 22, 2010, this court suspended the respondent, David J. Harding, from the practice of law in Kansas for a period of 90 days. See In re Harding, 290 Kan. 81, 223 P.3d 303 (2010). Before reinstatement, the respondent was required to pay the costs of the disciplinary action and comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361). The Disciplinary Administrator’s office has verified that the respondent has fully complied with the conditions imposed upon him. The court finds that the respondent, David J. Harding, should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas effective the date of this order.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports.
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The opinion of the court was delivered by
Beier, J.:
Defendant William Willard Sheldon was charged with three counts of making a false information and two counts of felony obstruction of an official duty arising out of firearm pawns. The district court judge dismissed one obstruction count, and a jury convicted Sheldon on the remaining charges. He appealed. The Court of Appeals reversed the three false information convictions but affirmed the obstruction conviction. This court granted Sheldon’s petition for review on the obstruction conviction. We denied the State’s cross-petition for review of the three false information convictions.
Facts and Procedural Background
On May 9, 2005, Wayman Young took a pistol, owned jointly with his wife, to Sheldon’s Pawn Shop in Arkansas City, Kansas. Young asked Sheldon if he could pawn the gun despite a prior felony conviction on Young’s record. By law, Sheldon was able to accept a gun from any person over 18 years of age but would only be able to return the gun to a person passing a law enforcement check. Sheldon therefore told Young that he could pawn the gun but that Young would not be able to retrieve it. Young then asked if he could pawn the gun in the name of his wife, Linda, so that she could retrieve it. Sheldon agreed to this arrangement.
Young then called his wife at work for permission to list her name and to get her Social Security number. She agreed to list the pawn in her name and provided the information Young requested. While filling out the pawn form, Young inadvertently listed an incorrect date of birth for Linda, accidentally checked the box for “black” despite Linda being “white,” and then signed her name.
Linda retrieved the gun on May 31 while Young was present.
Young took the pistol back to Sheldon’s Pawn Shop on June 9, 2005. Young followed the May 9 procedure, pawning the gun in Linda’s name with her permission. When filling out die pawn report, Young again called Linda for her Social Security number. He incorrecdy listed a different date of birth for Linda, checked the box for “black” but then scratched it out and checked “white,” and signed the form in his own name.
State statute and city ordinance require pawn store owners to provide certain information, including pawn tickets, to law enforcement. Officer Miles Cleveland of the Arkansas City Police Department regularly reviews pawn tickets and enters them into a database. On July 11, 2005, Cleveland encountered the June 9 pawn ticket filled out with Linda’s information but signed by Young. He noticed the incorrect date of birth for Linda, the change from “black” to “white,” and Young’s signature rather than Linda’s. Following his supervisor’s order, Cleveland passed the ticket to Detective Eric Mata for investigation.
Mata found the pawn ticket taped to his door on July 11 and went to Sheldon’s Pawn Shop to speak with Sheldon within a few days. At the point of this first conversation with Sheldon, Mata was investigating whether Young was in criminal possession of a firearm. Mata asked Sheldon who pawned the gun, and Sheldon said Linda had pawned the gun because Young could not be in possession of the gun. Mata asked Sheldon for the pawn contract, which is separate from the pawn ticket. The pawn contract had “Mrs. Wayman Young” written at the top. Mata asked why Young’s name was on the pawn ticket and pawn contract when Linda had pawned the gun, and Sheldon replied, “Well, that is just the way we keep track of it.”
On July 15, Mata spoke with Young and Linda about the matter. Linda admitted retrieving the gun on May 31 in connection with the May 9 pawn, and Young admitted he had pawned the gun using his wife’s information on both May 9 and June 9. The conversation ended with Young and Linda agreeing to fill out witness statements at the police station.
Later that afternoon, Mata returned to the pawn shop and spoke again with Sheldon. Mata was still investigating whether Young was in unlawful possession of a firearm. Wanting to find out why Sheldon’s initial account conflicted with Young’s story, Mata asked Sheldon “one last time” who pawned the gun. Mata characterized Sheldon’s response as “sketchy” because it now included Young being present, leaving to bring Linda to the shop, and then Linda waiting outside. Sheldon said that he was unsure whether Young or Linda filled out the forms. When pressed, Sheldon terminated the conversation.
As his investigation continued, Mata learned that Young could legally possess the gun because the time period prohibiting his possession of a firearm had expired. Accordingly, no charges were filed against Young.
The two felony obstruction counts filed against Sheldon,. Counts IV and V, were based on his two conversations with Mata. The underlying felony for Count IV was criminal possession of a firearm; die underlying felony for Count V was making a false information. Before the district judge submitted the case to the jury, he dismissed Count IV. The jury convicted Sheldon on the remaining counts.
The Court of Appeals reversed all but the conviction on Count V, which is the conviction Sheldon challenges before this court. He argues that there was no legal basis for the charge under K.S.A. 21-3808. Resolution of this issue requires statutory interpretation; thus our review is unlimited. State v. Seabury, 267 Kan. 431, 435, 985 P.2d 1162 (1999).
In reviewing a statute, “the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.” Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2,160 P.3d 843 (2007). “When statutory language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” State v. Breedlove, 285 Kan. 1006, Syl. ¶ 5, 179 P.3d 1115 (2008). Words in common usage are to be given their natural and ordinary meaning. See Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005).
K.S.A. 21-3808 provides in pertinent part:
“(a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law... in the discharge of any official duty.
“(b) (1) Obstructing legal process or official duty in the case of a felony ... is a severity level 9, nonperson felony.”
Sheldon argues that Seabury, 267 Kan. 431, controls.
In Seabury, the defendant was charged with obstructing execution of a search warrant arising out of an investigation of his son for cocaine trafficking. A majority interpreted the K.S.A. 21-3808 language “in the case of a felony” to mean that an underlying felony must have been committed or a felony charge must have been filed before a defendant can be charged with felony obstruction of official duty. Seabury, 267 Kan. at 437. Justice Fred N. Six, writing for a six-vote majority, stated: “A plain reading of the statute and a review of the case law supports our conclusion.” Seabury, 267 Kan. at 437.
Sheldon argues that the mere investigation of a felony occurring at the time he had his second conversation with Mata was legally inadequate to meet the statutory standard. Further, the ultimate Count V obstruction charge against Sheldon rested on an underlying felony of making a false information, and the investigation of that crime had not begun at the time of Mata’s second visit to the pawn shop.
The State responds that it is legally sufficient under Seabury that a felony case was eventually filed as a result of the investigation Mata conducted. In its view, it does not matter that, at the time of the statements made by Sheldon that are alleged to have constituted the obstruction, the only ongoing investigation that could have been obstructed was focused on a different crime and a different potential defendant or that the different crime turned out to be legally impossible. It was enough that the Mata investigation eventually ripened into an investigation of Sheldon’s facilitation of or participation in a falsification of the required pawn documents.
The State relies upon State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), in which the K.S.A. 21-3808 phrase “official duty” was under examination. In that case, we held that the “touchstone for the classification of the offense [as a felony or misdemeanor] is the reason for the officer’s approaching the defendant who then flees or otherwise resists, and not the status of the defendant.” Hudson, 261 Kan. at 538-39. Hudson, which predated Seabury by 2 years, reversed the felony conviction of a defendant who had fled from a traffic stop, ruling that he should have been charged with misdemeanor obstruction rather than felony obstruction based on warrants discovered after his apprehension because the law enforcement officer who made the stop did so for purposes of investigating a misdemeanor. Hudson, 261 Kan. at 538-39 (trial court properly reduced felony to misdemeanor based on subjective intention of investigating law enforcement officer); see State v. Kelley, 38 Kan. App. 2d 224, Syl. ¶ 1, 162 P.3d 832 (2007); State v. Lundquist, 30 Kan. App. 2d 1148, Syl. ¶ 5, 55 P.3d 928 (2002), rev. denied 275 Kan. 967 (2003) (new trial for misdemeanor, not felony); State v. Hutcherson, 25 Kan. App. 2d 501, 502-03, 968 P.2d 1109 (1998) (same).
The issue before us in this case is marginally more similar to that in Seabury than that in Hudson. We are not focused on classification of the Count V obstruction charge against Sheldon as a felony or misdemeanor but on whether, under any view of the un-controverted evidence, the State could make its case. That being said, the dispositive emphasis that the Hudson opinion places on the subjective intention of the official who is alleged to have been obstructed in carrying out his or her duty also informs our decision.
We agree with Sheldon that, as a matter of logic as well as law, the State could not meet its burden of proof on Count V. The uncontroverted testimony of Mata is that he was investigating only unlawful possession of a firearm by Young when he visited with Sheldon at the pawn shop on July 15. No investigation of making a false information committed by any potential defendant had begun; therefore, Sheldon, even if he lied to Mata, could not at that time be guilty under K.S.A. 21-3808 of “knowingly and intentionally obstructing, resisting or opposing” the detective “in the discharge of any official duty.”
Because our decision on this argument by Sheldon is dispositive of the case, we do not reach his other appellate issues.
The decision of the Court of Appeals affirming Sheldon’s felony obstruction conviction is reversed, as is the district court judgment of conviction. The remainder of Court of Appeals’ opinion, which reversed the district court jury convictions of Sheldon on three counts of making a false information, was not subject to our grant of review and therefore stands.
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The opinion of the court was delivered by
Luckert, J.:
Defendant Gayl Northcutt appeals his convictions for premeditated first-degree murder, in violation of K.S.A. 21-3401, and conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302. The defendant questions the sufficiency of the evidence with respect to the conspiracy conviction and also alleges the trial court erred by not instructing the jury on voluntary manslaughter as a lesser included offense. Both issues are inherently factual, and the facts of this case do not support Northcutt’s arguments on either issue. Consequently, Northcutt’s convictions are affirmed.
Preliminary Procedural Issue
After David Mason’s family reported him missing, police began an investigation that led them to suspect Mason had been killed by Northcutt and his brother. Two custodial interviews of North-cutt confirmed he had fought with Mason and that Mason was dead. In fact, after the interviews, Northcutt showed officers where he and his brother had buried Mason.
At Northcutt’s trial, audiotapes of the two custodial interviews were played to the jury. In both interviews, Northcutt admitted to beating Mason, and in the second interview he confessed that he and his brother had gone to Mason’s apartment with the intent to kill Mason. Consequently, the audiotapes are important to the analysis of Northcutt’s factually-based appellate arguments. Yet, when this court began its review of the case, the audiotapes of the interviews — trial exhibits 57 and 58 — were not in the record on appeal.
During oral arguments, the court questioned counsel regarding the burden of creating an adequate record on appeal. At that point, both counsel were alerted to the absence of the tape recordings from the record. In response, both counsel advised the court the exhibits had been designated for inclusion in the record on appeal through a supplemental designation, which was also not in this court’s record. It was later reported to the court that the original exhibits could not be located. Northcutt then filed a “Motion to Order Transmission of the Record on Appeal.” In support of the motion, Northcutt’s appellate counsel stated that she had received the tapes after the appeal had been docketed, relied on the tapes in preparing Northcutt’s appellate brief, and then returned the tapes to the Wyandotte County District Court Clerk’s office. Although the parties’ statements of facts did not significantly differ, Northcutt argued his constitutional due process and equal protection rights would be violated if this court did not have the opportunity to review the tapes.
After the motion was filed, the Clerk of the Appellate Courts, with the cooperation of counsel, located copies of the audiotapes and a police department transcript of the recorded interviews. Based on the availability of these substitutes, this court
“ordered [the parties] to notify this court within (10) days if there is any objection to the court’s addition of the audio copies and transcripts to the record on appeal, as substitutes for the unavailable exhibits. If objection is made, the parfy should also address why this matter should not be remanded for a hearing regarding the unavailability of the exhibits and alternatives for preservation of a record on appeal. See Rule 3.02 (2009 Kan. Ct. R. Annot. 22); Rule 3.04 (2009 Kan. Ct. R. Annot. 26).”
The State responded, indicating it did not object to the addition to the record. Northcutt did not file an objection. Hence, the audiotapes and transcript were submitted to the court as part of the record on appeal. As a result of this procedure and Northcutt’s waiver of any objection, the record is complete, Northcutt’s motion is moot, and this appeal is ready for decision.
Facts
The record reveals that Mason died the night of March 15,2006, and that Mason had spent much of that day with Northcutt. Virtually all of the evidence regarding what occurred that day came from Northcutt’s two custodial interviews and his trial testimony. Although there are common themes and details in his various statements, there are also variances.
In his first interview with police, Northcutt explained that after spending most of March 15 with Mason, he went home mid-afternoon. That evening he went to Mason’s apartment, which Mason shared with Northcutt’s younger brother, John. At the apartment, Mason and Northcutt “got into a kind of pushing, shoving argument.” Northcutt explained he had confronted Mason about a dispute between Mason and his brother regarding rent money and because Mason owed Northcutt for some expensive camera equipment that Mason had borrowed and not returned, claiming the equipment had been stolen from him. Northcutt told Mason to “take care of business” and then shoved Mason. Mason fell and hit his head on a metal bed rail. Mason then stood up, slipped, fell down, and again hit his head on the bed rail. Later in the interview, Northcutt admitted that he shoved Mason both times Mason fell. After Mason fell against the bed rail the second time, Northcutt left Mason where he had fallen and walked out of the room. North-cutt returned to Mason’s apartment the next day and found Mason dead.
Police interviewed Northcutt a second time after they interviewed his brother, John. In the second interview, Northcutt implicated his brother as a participant in the fight and stated that both he and his brother went to Mason’s apartment with the intent to kill Mason. In explaining the events, Northcutt told police he left his house with rope that had a “gear shifting knob” attached to it. He described the knob as about the size and weight of a pool ball. After entering the apartment, Northcutt pulled Mason out of a chair, pushed him against a wall, and “conked” him on the head. Mason started screaming, and John increased the volume on the television to cover the sound. The fight continued as Mason attempted to run away from Northcutt. Northcutt admitted to hitting Mason twice in the back of the head and to punching Mason in the chest.
Another version of events was offered by Northcutt during his trial, which was separate from his brother’s trial. In testifying in his own defense, Northcutt told the juiy that he and Mason spent the day of March 15 together, riding in Mason’s car, going to a lake, and getting drunk. Sometime during their outing, Mason fell off a boat dock and cut his arm, and Northcutt helped him put a bandage on it. They returned to Mason’s apartment around 3 p.m. so Mason could go to the bank and get $500 he owed to Northcutt. When they arrived at the apartment, Mason went inside, and Northcutt walked three blocks to his mother’s house.
Defense counsel asked Northcutt about the problems between Mason and Northcutt and between Mason and John. Northcutt testified that there were issues between John and Mason concerning rent and utilities. As for Northcutt’s situation, he testified that in addition to loaning money to Mason, he had loaned his expensive camera equipment to Mason around 1986 or 1987, and Mason had told him it had been stolen. Northcutt estimated the value of the equipment as around $30,000. On March 15, John called Northcutt and informed Northcutt that Mason was using Northcutt’s supposedly stolen camera. Northcutt testified that he told his brother that if Mason has “got my camera I wanted to get it back, and if he’s taking pictures of me, I said I’m going to lack his butt.” The brothers also talked about the disagreement between Mason and John regarding rent and utility payments. Northcutt testified:
“I told John, I said well, I would confront [Mason] about it, but I said that’s really none of my concern, that’s between you and him. John wanted to move out and I said well, you can’t move over here. ... I’ll let you park your bags over here if you want, but as far as that, I said I’ll confront [Mason] about certain issues, you know, and if you want, you know, because John’s land of scared to talle to him.”
When Northcutt made this offer, John reported that Mason was not at the apartment. Northcutt told John to call him when Mason returned, which John did a short time later. Northcutt immediately went over to Mason’s apartment.
Northcutt rode his bicycle and brought with him a climber’s “impelling rope” that he routinely used to suspend his bicycle in trees to prevent it from getting stolen. This impelling rope, according to Northcutt, was about 18 inches long, had a clip, and had a gearshift knob on one end for weight. The impelling rope was attached to a longer rope that was about 35 feet long. When he arrived at Mason’s residence, he discovered the branches on the trees were too tall to reach, so he could not hang his bicycle. He put the bicycle under the back porch and carried the impelling rope inside.
Northcutt testified that he came up behind Mason, who was sitting at the computer, and “kind of kicked him in the butt” and asked if he had his camera. At that point, Mason jumped up, bringing some computer cords with him. The two men got “tangled up” in the cords. Northcutt said his impelling rope got wrapped around Mason’s hand, so he tried to unwrap it. But, according to North-cutt, Mason was “half drunk” and kept pulling at the impelling rope at the same time Northcutt was working on it, which caused the heavy ball to keep hitting both of them. They got untangled, but Mason started “yelling and screaming” because the bandage ripped off his arm in the struggle and his cut was bleeding. At that point, John came into the room and turned up the volume on the television.
The arguing continued, and Northcutt tried to “chase them around” the apartment in an attempt to bandage Mason’s arm. Eventually, Mason sat at the kitchen table but then ran to his bedroom. Northcutt followed and when he opened Mason’s bedroom door, Mason pulled Northcutt’s hand. Their hands slipped apart, and Mason fell backwards, hitting his head on the bed railing. According to Northcutt, Mason’s head was bleeding, so Northcutt told him to sit while Northcutt got a first aid kit. Mason tried to get up but fell again, hitting his head on the bed’s footboard. Mason got on the bed, saying, “I just want rest.” At that point, Northcutt left the apartment.
Northcutt testified that he returned to Mason’s apartment the next day. John, who had spent the night at his girlfriend’s house, arrived at the same time. The two went inside and found Mason dead. He was lying face down in the living room. Northcutt told the jury that he did not know what happened but thought people would think “I done something wrong” because of his fight with Mason the previous night. A couple of days later, Northcutt told John “we’re going to have to do something” about Mason. They used some plastic and a moving dolly to transport Mason to the bedroom floor. Sometime later, Northcutt decided to bury Mason behind their mother s house and leave town.
When asked by defense counsel if he intended to kill Mason, Northcutt testified, “No, I did not.” He also denied conspiring with John to Mil Mason and indicated that he did not know how Mason died.
Several other witnesses testified during the trial. Although most of this testimony relates to matters that are not at issue on appeal, some additional points are significant to our discussion, including police testimony that there was a large blood stain on the bedroom floor and a forensic pathologist’s testimony regarding autopsy results. The pathologist testified he could not determine the cause of death because of the level of decomposition resulting from the body being wrapped in plastic for nearly a month before police uncovered the grave. Despite the decomposition, the pathologist could discern four head lacerations that were consistent with blows by a pool ball-sized object. These injuries by themselves were not necessarily fatal but could have been part of the “mechanism of death.”
An additional witness’ testimony provides circumstantial evidence relevant to our consideration, as will be more fully discussed. That witness — a neighbor who lived in the upstairs portion of the duplex — testified that she met John and Northcutt on the sidewalk and, about 10 minutes after entering her apartment, heard a loud argument coming from downstairs. She recognized the voices of John, Mason, and one or two others. She heard Mason tell John that he was going to Mck him out of the apartment because John was not helping pay the rent. Then, the television downstairs got very loud, and a short time later she heard the slam of a door. From her apartment window she saw John driving away in Mason’s car, screeching the tires as he left the driveway. This was unusual because Mason did not let others drive his car. The neighbor testified that this was the last time she saw Mason’s car at the apartment.
After hearing Northcutt’s various statements and the testimony of the other witnesses, a jury convicted Northcutt of premeditated first-degree murder and conspiracy to commit first-degree murder. For the murder conviction, the journal entry of sentencing reflects a term of life imprisonment with no possibility of parole for 25 years and a concurrent term of 117 months3 imprisonment for the conspiracy. Northcutt appeals.
Sufficiency of Conspiracy Evidence
First, Northcutt contends there was insufficient evidence to support his conviction for conspiracy to commit first-degree murder. In reviewing the sufficiency of the evidence, an appellate court reviews all the evidence, viewed in a light most favorable to the prosecution, to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009); State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
To meet this standard, there must be evidence supporting each element of the conspiracy charge, which the State alleged was based on Northcutt and John knowingly and willfully “enter[ing] into an agreement with each other to commit or assist in the commission of a crime, to-wit: First-Degree Murder, as defined in K.S.A. 21-3401, and in furtherance of such agreement. .. kill[ing] David Mason by striking him in the head with a hard object several times until he died.”
Thus, to establish that Northcutt had committed the crime of conspiracy to commit first-degree murder, the State was required to prove (1) that Northcutt agreed with John to commit or assist in the commission of the crime of first-degree murder; (2) that he agreed with the intent that die crime be committed; (3) that North-cutt or John acted in furtherance of the agreement; and (4) that this act occurred on or about March 15, 2006, in Wyandotte County, Kansas. See K.S.A. 21-3302; State v. Webber, 260 Kan. 263, 288, 918 P.2d 609 (1996); Pattern Instructions for Kansas Crim. 3d 55.03. To prove these elements under Kansas law, the existence of an agreement does not need to be proved directly. “[I]t is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.” State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995); see State v. Sharp, 289 Kan. 72, 105, 210 P.3d 590 (2009).
The record includes evidence to support each of these elements. Northcutt’s testimony at trial revealed an express agreement between the brothers. As quoted above, Northcutt told his brother he would confront Mason about the rent because John was “scared” to talk to Mason about it. Further, the brothers agreed that John would let Northcutt know when Mason returned to the apartment, indicating an express acceptance of Northcutt’s offer. In addition to this direct evidence of an agreement, there are several pieces of circumstantial evidence, including the fact that John met Northcutt outside the apartment (indicating a plan) and the neighbor overheard an argument about rent (indicating that plan was implemented).
Moreover, there is evidence of an agreement to lull Mason. Direct evidence of this agreement comes from Northcutt’s second interview with police in which he repeatedly admitted that he went to the apartment with the intent to kill Mason. In addition, at one point during the interview, Northcutt stated that both he and John went to the apartment to kill Mason. Further, there is supporting circumstantial evidence. For example, Northcutt brought a homemade weapon with him into the apartment, despite Northcutt’s testimony that he usually left it on his bicycle. Then, when Mason began to scream, John increased the volume on the television, an act which suggests he knew the fight and the screaming were going to continue. Further, although vague and conflicting, Northcutt made statements indicating John “may have” helped to hold Mason while Northcutt hit him repeatedly, including landing severe blows to Mason’s head. Regardless of the ambiguity regarding the level of John’s participation in the beating, there was evidence that both brothers acted in furtherance of an agreement to kill Mason.
In summary, there is evidence that Northcutt and John agreed to Ml Mason, they planned a confrontation, Northcutt armed himself with a weapon, they met outside the apartment before beginning the confrontation, they assisted each other in the commission of the crime, and Mason died as a result of their premeditated actions. This evidence, when viewed in a light most favorable to the prosecution, is sufficient to support a conclusion that a reasonable factfinder could find beyond a reasonable doubt that North-cutt conspired with John to commit first-degree murder.
Lesser Included Offense of Voluntary Manslaughter
Next, Northcutt argues that the trial court erred in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of premeditated first-degree murder. The court did instruct on second-degree murder and involuntary manslaughter as lesser offenses but refused Northcutt’s request to give a voluntary manslaughter instruction.
The legislature has established the parameters for when jury instructions on lesser included offenses should be given. K.S.A. 22-3414(3) provides in relevant part:
“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.”
Thus, we must examine the record to see if there is some evidence of each of the elements of voluntary manslaughter and, if so, if that evidence would reasonably justify a conviction for voluntary manslaughter. See State v. Houston, 289 Kan. 252, 276, 213 P.3d 728 (2009).
In arguing that the facts of the case meet this standard, North-cutt admits that a voluntary manslaughter instruction “does not completely fit with either party’s theory of the case.” Yet he argues the jury could have believed that the victim provoked a sudden quarrel when he stood up from the computer and entangled North-cutt in the computer cords, “causing a drunken fight to ensue.” See K.S.A. 21-3403(a) (voluntary manslaughter defined to include intentional killing on “a sudden quarrel or in the heat of passion”); State v. Arteaga, 257 Kan. 874, 890, 896 P.2d 1035 (1995).
This argument ignores Kansas precedent that requires severe provocation to justify giving a voluntary manslaughter instruction. E.g., State v. Vasquez, 287 Kan. 40, 55-56, 194 P.3d 563 (2008); State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008); State v. Drennan, 278 Kan. 704, 713, 101 P.3d 1218 (2004); State v. Horn, 278 Kan. 24, 40-41, 91 P.3d 517 (2004). Under our precedent, mere evidence of an altercation between parties does not alone support finding sufficient provocation. State v. Mitchell, 269 Kan. 349, 353, 7 P.3d 1135 (2000); see Gallegos, 286 Kan. at 874-75 (holding evidence of argument between victim and defendant fails to demonstrate legally sufficient provocation for shooting victim).
In Horn, 278 Kan. 24, we reiterated these and other basic principles regarding the elements of voluntary manslaughter, stating in part that “ ‘[a] provocation is adequate if it is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason.’ [Citation omitted.]” Horn, 278 Kan. at 40. The Horn court further explained that “ ‘[t]he test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be “sudden quarrel” or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason.’ ” Horn, 278 Kan. at 40 (quoting State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 [1985]).
Considering these rules, we conclude that even if the jury accepted that Mason stood up and became tangled in the computer cords and Northcutt’s “impelling rope,” such an action is not severe provocation; it is not an action that would cause an ordinary person to lose control of his or her actions and reason. Moreover, one consistency in all of Northcutt’s various renditions of events was that Northcutt was the first one to push, shove, kick, lift, or hit. Even before the jury, Northcutt testified that he went into Mason’s home, came up behind Mason, and “lacked him in the butt.” Only then did Mason rise and become tangled in the cords. In other words, Northcutt provoked Mason’s actions, not the other way around.
Because there is no evidence of provocation by Mason, much less severe provocation, the trial court was not required to instruct the jury on voluntary manslaughter. See Vasquez, 287 Kan. at 55-56 (stating that facts did not “ ‘meet the provocation threshold— that which is calculated to deprive a reasonable [person] of self-control and to cause [the defendant] to act out of passion rather than reason’ ”); Gallegos, 286 Kan. at 874-75 (holding evidence of argument between victim and defendant fails to demonstrate le- gaily sufficient provocation for shooting victim); Drennan, 278 Kan. at 711-13 (hitting someone’s back during verbal argument not sufficient provocation).
Affirmed.
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Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Christopher R. Miller. The overarching question presented is whether Miller engaged in the unauthorized practice of law after the Supreme Court imposed a 2-year suspension of his license to practice law on December 8, 2006.
Factual and Procedural Overview
Miller was admitted to the practice of law in the state of Kansas on April 19,1984. In 1991, he and another attorney formed a professional association, styled Little and Miller, Chartered. After the other attorney left the firm, Miller continued to practice law from the same location under the same corporate name. The Supreme Court suspended Miller s license to practice law for 2 years beginning December 8, 2006, for misconduct related to improper billing. In re Miller, 282 Kan. 689, 699, 147 P.3d 150 (2006). Miller then entered into a verbal arrangement with Chris Cowger, an attorney and long-time friend, to handle the legal practice of the professional association. Under the arrangement, Cowger was paid by the corporation on an hourly basis and his compensation was reported to the Internal Revenue Service as being that of an independent contractor.
During the suspension period, on January 17, 2007, a letter on firm stationery that identified Miller as an attorney of the firm was sent to opposing counsel in a case that had begun before Miller’s suspension. Miller s name was typed in the signature portion of the letter, and the body of the letter declared: “As you will recall, I represent [the pre-suspension client].” The attorney to whom the letter was sent filed a report with the Disciplinary Administrator s office.
The Disciplinary Administrator’s office appointed an attorney to investigate the report. The investigator requested the file on the case addressed in the letter, but Miller never provided the file. The Disciplinary Administrator filed a formal complaint against Miller on March 11, 2009. Miller answered the complaint, challenging most of the allegations relating to the arrangement with Cowger. After an evidentiary hearing on June 23, 2009, at which the respondent was personally present and was represented by counsel, the appointed hearing panel found that Miller had violated Kansas Rules of Professional Conduct (KRPC) 5.5 (2009 Kan. Ct. R. An-not. 580) (unauthorized practice of law), KRPC 8.1(b) (2009 Kan. Ct. R. Annot. 594) (failure to respond to lawful demand for information from disciplinary authority), KRPC 8.4(a) (2009 Kan. Ct. R. Annot. 602) (misconduct), and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). The panel recommended that Miller be disbarred.
Hearing Panel Final Report
The hearing panel made the following findings of fact, conclusions of law, and dispositional recommendation:
“FINDINGS OF FACT
“2. The Respondent practiced law in Lawrence, Kansas. Beginning in approximately 1991, the Respondent became associated in the practice of law with Jerry Little. The Respondent and Mr. Little established their law firm as a corporation, Little and Miller, Chartered.
“3. In approximately 1995, Mr. Little left the law firm. After Mr. Little left the firm, the Respondent continued to practice law from the same location and own and operate the corporation.
“4. On December 8, 2006, the Kansas Supreme Court suspended the Respondent’s license to practice law for a period of two years. In re Miller, 282 Kan. 689 (2006). In that case, the Court concluded that the Respondent violated KRPC 1.5(a), KRPC 3.1, and KRPC 8.4(c). In its opinion, the Court ordered the Respondent to comply with Kan. Sup. Ct. R. 218. [Footnote: In the letter the Re spondent sent to his clients in an attempt to comply with Kan. Sup. Ct. R. 218, he failed to mention the fact that he was suspended from the practice of law.]
“5. At the time the Respondent was suspended from the practice of law, the Respondent operated a high volume workers’ compensation law practice. He had approximately 145 open files at the time of his suspension.
“6. Shortly before his suspension, the Respondent contacted Christopher Cowger and requested that Mr. Cowger take over the Respondent’s law practice in the event he was suspended from the practice of law. Rather than transfer the files to Mr. Cowger, the Respondent and Mr. Cowger agreed that Mr. Cowger would come to Lawrence and work out of the Respondent’s office.
“7. The Respondent and Mr. Cowger agreed that the corporation would pay Mr. Cowger $70 per hour. Mr. Cowger was not paid as an employee or as an owner of the corporation, but rather, Mr. Cowger was paid as an independent contractor. For tax purposes, Mr. Cowger received a Form 1099 to report his income from the corporation.
“8. Mr. Cowger worked in this capacity from sometime after December 8, 2006, until some date in December, 2007.
“9. The agreement between Mr. Cowger and the Respondent was not reduced to writing.
‘TO. Prior to his suspension, the Respondent represented Dr. John Skuban in a worker’s compensation case against Lab One, Inc. John R. Emerson represented Lab One. At some point, the Respondent or his assistant prepared a letter on behalf of Dr. Skuban addressed to Mr. Emerson. It appears that someone from the Respondent’s office provided a copy of the letter to Dr. Skuban who took the letter to Walgreens.
“11. The letter provided, in pertinent part, as follows:
‘As you will recall, I represent Dr. Skuban. I am writing with regard to his medical treatment; and more specifically, his prescription medication, prescribed by his “authorized” treating doctor, under the previous Order of the Court.’
The letterhead read:
‘Law Office
645 Country Club Terrace
P.O. Box 1265
Lawrence, Kansas 66044
Telephone: 785-841-6245
Fax: 785-841-6445
e-mail: millerlaw@iuno.com’
The unsigned signature block read, ‘Sincerely yours, Chris Miller For the Firm.’
“12. Mr. Emerson received Disciplinary Administrator’s Exhibit 2 via facsimile from Walgreens Companies. Later, Mr. Emerson discovered a second copy of the same letter, signed “Chris” in his file.
“13. Then, on January 19, 2007, Mr. Cowger wrote to Mr. Emerson. The letter began similarly but contained different information.
“14. At the hearing on this matter, the Respondent testified that he did not sign Disciplinary Administrator’s Exhibit 3. He explained that when he signs letters, he typically signs ‘Chris Miller’ rather than ‘Chris.’ Mr. Cowger testified that he believes that he signed Disciplinary Administrator’s Exhibit 3. Mr. Cowger explained that when he signs letters, he typically signs only ‘Chris.’
“15. The Respondent and Mr. Cowger testified that the letters found at Disciplinary Administrator’s Exhibit 2 and 3 were inadvertently sent out. They testified that they attempted to change the letterhead to ensure that no letters with Mr. Miller’s name were sent out. They testified that this letter was simply a mistake.
“16. At the hearing on this matter, the Respondent and Mr. Cowger also testified about the structure of the law firm. The Respondent’s testimony was at odds with Mr. Cowger’s testimony regarding the management and ownership of the firm. The Respondent testified that he gave the corporation to Mr. Cowger:
‘Q. [By Mr. Walczak] Now, did you go and change the Articles of Incorporation with the Secretary of State in late December of 2007 or January 2008?
‘A. [By the Respondent] They were changed, I’m not sure exactly when.
‘Q. Well, they were changed much later, correct?
‘A. I don’t know without looking at the filing.
‘Q. Okay. So whether it be back in — when Mr. Cowger began working with Litde and Miller did you hold meetings of the shareholders?
‘A. He was the only shareholder.
‘Q. He was a shareholder?
‘A. He was — he owned the corporation.
Q. He was given — how was he given that?
‘A. I essentially gave it to him. I said it’s yours.’
However, while Mr. Cowger recalled signing some documents that the Respondent put in front of him, he had no recollection of owning the corporation or being a shareholder.
‘Q. [By Mr. Walczak] Are you familiar with an entity of MiHer and Little — or Litde and MiHer, Chartered?
‘A. [By Mr. Cowger] Yeah. I mean, I’m familiar with that name, yes.
‘Q. What was it or what is it?
‘A. WeH, it was- — -I guess it was an entity that Mr. Miller formed with respect to his law practice.
‘Q. Okay. And were you going to be — did you have any ownership in that?
‘A. No, I did not.
‘Q. Do you know whether or not what type of corporate entity it was, was it Hke a Hmited liabifity company or was it a corporate or what?
‘A. I beHeve it was a corporation, but I ready didn’t have any involvement witir the corporation per se or at aU.
‘Q. Were you a shareholder?
‘A. No.
‘Q. Were you an officer?
‘A. I don’t believe I was.
‘Q. Did you ever attend any type of corporate meetings or discussions with Mr. Miller regarding the operation of the corporation?
‘A. Not that I recall, no.
‘Q. Now, there is — there’s been some corporate documents admitted in evidence that listed you as the president, as well as the treasurer. Are you aware of those?
‘A. Yeah, I think I signed some documents to that effect.
‘Q. You signed some documents?
‘A. I may have, yes.
‘Q. Okay. Did you authorize that to be done?
‘A. Well, I signed it, so—
‘Q. If you signed it, what was the purpose of that?
‘A. Well, I’m not sure to be perfectly honest about it. They were presented to me for signature. It was some corporate matter which to me I was — all I really cared about was getting paid the $70 an hour. You know, what went on beyond that as far as the corporate really didn’t have any impact or bearing on me. I didn’t feel like it anyway.’
“17. On April 12, 2007, the Respondent prepared the Annual Statement for Little & Miller, Chartered. According to that document, Mr. Cowger was the President, the Treasurer, and the sole shareholder of the corporation. Additionally, the Respondent was the Secretary.
“18. Despite that Mr. Cowger was listed as the President and Treasurer of Little & Miller, Chartered, Mr. Cowger had no authority over the financial operations of the corporation. Mr. Cowger did not have access to or control of the checking accounts of the law practice. Mr. Cowger did not sign any checks, rather, the Respondent signed all the corporation’s checks. The following exchange occurred between Mr. Walczak and Mr. Cowger:
‘Q. And would it be a fair statement or you tell me who was — the bottom line, who was the boss — who was the boss of Little and Miller, Chartered when you were there? Forget about the titles, who was the boss.
‘A. I don’t know how to answer that. I mean, there was — I viewed it as no boss. We all kind of just worked together. I mean, I did the attorney work and Chris and Kathy did the other work. I mean, that’s how I—
‘Q. Who made the financial decisions?
‘A. Well, that would have been Chris [Miller].’
Additionally, Mr. Cowger did not enjoy the profits of the corporation, he did not suffer the losses of the corporation, he did not engage in financial transactions in behalf of the corporation, nor did he manage the corporation.
“19. On January 29, 2007, Mr. Emerson forwarded a copy of Disciplinary Administrator’s Exhibit 2 to the Disciplinary Administrator, along with a letter of complaint. Kay Huff, attorney, was appointed to investigate this case. Ms. Huff wrote to the Respondent and asked him to call to schedule an interview. When the Respondent called, Ms. Huff asked the Respondent to bring his file with him to the interview. The Respondent failed to bring his file with him to his interview with Ms. Huff. The Respondent never provided Ms. Huff with a copy of his file.
“CONCLUSIONS OF LAW
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 5.5, KRPC 8.1(b), KRPC 8.4(a), and KRPC 8.4(g), as detailed below. [Footnote: The Respondent and his corporation owned some property referred to as ‘the Pomona property.’ Following the sale of the Pomona property, the Respondent deposited the settlement proceeds into his attorney trust account. While it is unclear when this transaction occurred and why the Respondent would continue to have an attorney trust account during the period of suspension, KRPC 1.15 prohibits the commingling of personal funds with client funds. Thus, the Hearing Panel believes that the Respondent violated KRPC 1.15, by commingling his funds with client funds, when he deposited the proceeds of the sale of the Pomona properties, in his attorney trust account. However, facts relating to this violation were not included in the Formal Complaint. Thus, the Hearing Panel makes no formal conclusion in this regard.]
“2. KRPC 5.5 provides:
‘A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.’
“The Respondent argued that he did not engage in the unauthorized practice of law.
“3. From time to time, the Supreme Court has considered what constitutes the practice of law:
‘In determining what constitutes the “practice of law” no precise, all-encompassing definition is advisable, even if it were possible. Every matter asserting the unauthorized practice of law must be considered on its own facts on a case-by-case basis. . . .
“As the term is generally understood, the practice of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.” State, ex rel., v. Perkins, 138 Kan. 899, 907, 908, 28 P.2d 765 (1934).’
‘The court, in Perkins, also pointed out that “[o]ne who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.” 138 Kan. at 908[, 28 P.2d 765]. The quotation from the Eley [v. Miller, 7 Ind. App. 529, 34 N.E. 836 (1893)] case has been adopted as die general rule in 7 C.J.S., Attorney and Client, § 3g (1937).
‘A more recent source defines the practice of law as “the rendition of services requiring the knowledge and application of legal principles and technique to serve tire interests of another with his consent.” R.J. Edwards, Inc. v. Herí, 504 P.2d 407, 416 (Okla., 1972).’
State ex rel. Stephan v. Williams, 246 Kan. 681, 689 (1990).
“4. Following the Respondent’s suspension from the practice of law, the Respondent did not alter his conduct much. The Respondent simply changed the signature line on letters and pleadings. The Respondent also hired Mr. Cowger to review and sign letters, review and sign pleadings, and make court appearances.
“5. In In re Wilkinson, the Court considered what a suspended or disbarred attorney may do when he is employed by a licensed attorney. In that case, the Court said:
‘MRPC 5.3 (1991 Kan. Ct. R. Annot. 292) concerns an attorney’s responsibility for nonlawyer assistants. The Comment accompanying MRPC 5.3 provides:
“Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client and should be responsible for their work product. The measures employed in supervising nonlawyers should taire account of the fact that they do not have legal training and are not subject to professional discipline.”
‘The disciplinary administrator maintains MRPC 5.3 is not applicable to suspended attorneys, arguing that “nonlawyer assistant” plainly means someone who is not an attorney and that Wilkinson, although suspended, still retains his designation as an attorney. The disciplinary administrator relies upon State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974),in which this court discussed the status of a suspended attorney:
“Just as every lawyer should avoid even the appearance of professional impropriety, a suspended attorney should avoid the appearance of failure to comply with the court’s order. The Nebraska Supreme Court has suggested that this means he must refrain from the things which he did as an attorney even though he might legally do them as a layman:
It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law. ... A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account. State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 649, 111 N.W.2d 543 (1961).” 214 Kan. at 10-11[, 519 P.2d 1116.’]
251 Kan. 546, 548-49 (1992).
“6. Rather than going to work for an attorney, the Respondent appears to have hired an attorney to continue his legal work for him. The supervision that is required by the rules was not present in this case.
“7. At the hearing on this matter, the Respondent, through his counsel, argued that the arrangement between Mr. Cowger and the Respondent benefitted Mr. Cowger as he did not have to pay office over-head or staff salaries. However, if Mr. Cowger truly owned the corporation, and if the corporation paid the overhead and the staff salaries, then Mr. Cowger was paying the over-head and he was paying staff salaries. The Respondent’s argument in this regard supports the conclusion that Mr. Cowger did not own or operate the law firm, rather, the Respondent did.
“8. Based on all the evidence, the Hearing Panel concludes that the Respondent engaged in the unauthorized practice of law after his suspension. The Hearing Panel concludes that the Respondent set up a system which allowed him to continue to practice law by virtue of Mr. Cowger’s license, in violation of the Kansas Supreme Court’s order of suspension. Because the Respondent continued to practice law after his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5.
“9. Lawyers must fully cooperate in disciplinary investigations. KRPC 8.1(b) provides the requirement in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, . . .’ KRPC 8.1(b). The Respondent violated KRPC 8.1(b) when he failed to provide Ms. Huff with access to his file. Accordingly, the Heating Panel concludes that the Respondent violated KRPC 8.1(b).
‘TO. ‘It is professional misconduct for a lawyer to . . . [v]iolate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.’ In this case, the Respondent violated KRPC 5.5 by using Mr. Cowger’s law license, all in violation of KRPC 8.4(a). By hiring Mr. Cowger, the Respondent was able to continue his practice of law in violation of the Kansas Supreme Court’s order of suspension. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a).
“11. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). Circumventing the Kansas Supreme Court’s order of suspension adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“12. The Disciplinaiy Administrator also alleged that the Respondent violated KRPC 8.4(d). The Hearing Panel concludes that the Disciplinary Administrator failed to establish, by clear and convincing evidence, that the Respondent violated KRPC 8.4(d).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’)- Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal profession.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On December 8, 2006, the Kansas Supreme Court suspended the Respondent’s license to practice law for having violated KRPC 1.5(a), KRPC 3.1, and KRPC 8.4(c). In re Miller, 282 Kan. 689 (2006).
“Dishonest or Selfish Motive. The Respondent’s conduct in his regard was motivated by dishonesty. It is dishonest to continue to run a law practice by using another’s license.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by establishing a system to circumvent the Kansas Supreme Court’s order'of suspension. By employing Mr. Cowger, the Respondent was able to continue to run his practice through Mr. Cowger.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to provide access to his file to Ms. Huff, the attorney investigator.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent refused to admit that he engaged in any misconduct.
“Substantial Experience in the Practice of Law. The Respondent was licensed to practice law in 1984. At the time of his suspension, he had practiced law for 22 years.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following ABA Standards:
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘8.1 Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession;
or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be disbarred. Counsel for the Respondent argued that he did not engage in the unauthorized practice of law and the complaint should be dismissed. Counsel for the Respondent acknowledged, however, that if die Hearing Panel and, ultimately, the Kansas Supreme Court, conclude that the Respondent engaged in the unauthorized practice of law, the outcome of the case, pursuant to Kan. Sup. Ct. R. 218(c), would be disbarment.
“Kan. Sup. Ct. R. 218(c) provides that ‘violation of any suspension order shall constitute grounds for disbarment.’ Thus, based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Respondent’s Exceptions
On December 21, 2009, the respondent filed exceptions to the panel’s final hearing report. See Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot 337). Without further elaboration, the pleading recited that
“Respondent objects and files exceptions to the findings of fact contained in paragraphs 16, 18, and 19, in that those findings were not proven by clear and convincing evidence; and to the conclusions of law contained in paragraphs 1, 4, 6, 7, 8, 9, 10, and 11, in that those findings were neither proven by clear and convincing evidence, nor do they represent a correct interpretation of the law applicable to such matters.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary hearing panel, and tire arguments of the parties and determines whether violations of the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In his briefing to this court, the respondent does not specifically explain his exceptions to the panel’s factual findings in paragraphs 16, 18, and 19 of the final hearing report. See In re Bishop, 285 Kan. 1097, 1106, 179 P.3d 1096 (2008) (a respondent who does not advance arguments or provide record citations to support exceptions to the final hearing report is deemed to have abandoned the exceptions). Nevertheless, we note that the first two paragraphs, 16 and 18, consist principally of quotations from the hearing transcript, which clearly support the findings made in those paragraphs. Paragraph 19 essentially states that Miller never provided the investigating officer with the case file she requested, which is not only supported by clear and convincing evidence, but is uncontroverted. While Miller proffers a reason for not providing the case file, he does not contend that it was, in fact, provided.
Miller’s brief suggests that his case boils down to a determination of two issues: (1) whether he practiced law during the period of his license suspension, either individually or through another attorney, Chris Cowger; and (2) whether he failed to cooperate in the investigation of the complaint against him. He argues that both issues should be resolved in his favor.
Unauthorized Practice of Law
Miller contends that he did exactly what a suspended attorney is supposed to do: he sent letters to his clients, filed pleadings to withdraw from his pending court cases, transferred ownership of his professional corporation to a licensed attorney, and thereafter functioned solely in the capacity of a law clerk or legal assistant. In contrast, the Disciplinary Administrator essentially characterizes Miller’s actions as purchasing the use of Cowger’s law license to continue Miller’s law practice during his suspension period. The clear and convincing evidence supports the Disciplinary Administrator’s position and the hearing panel’s conclusions.
“[A]n attorney suspended from the practice of law cannot hold himself or herself out to be an attorney, either through signing letters and pleadings or appearing in court; cannot counsel clients about legal matters; and cannot maintain or retain clients.” In re Wilkinson, 251 Kan. 546, 553, 834 P.2d 1356 (1992). Miller concedes that he failed to completely avoid the appearance that he was continuing to practice law. See State v. Schumacher, 214 Kan. 1, 10, 519 P.2d 1116 (1974) (“a suspended attorney should avoid the appearance of failure to comply with the court’s [suspension] order”). For some time after his suspension, Miller maintained an exterior sign at the law office where Cowger was ostensibly practicing that identified Miller as an attorney. He admittedly used letterhead indicating that he was an attorney and recited in a letter to opposing counsel that he, Chris Miller, represented the client and was sending the letter for the firm. We have previously found that similar conduct supported a conclusion that the respondent engaged in the unauthorized practice of law. See In re Rost, 289 Kan. 290, 306-07, 211 P.3d 145 (2009). Exacerbating the possibility of public confusion, the representation of the clients was continued under the same firm name, Little and Miller, Chartered, and at the same location. Further, Miller continued to talk with his former clients on the telephone, albeit he contends he was functioning only as a receptionist.
More importantly, however, the role that Cowger assumed with respect to Miller’s former practice is inconsistent with the notion that Miller was only engaging in conduct which is permissible for a suspended attorney. The hearing panel found that the professional corporation, Little and Miller, Chartered, treated Cowger as if he were an independent contractor. Miller does not challenge that finding, and it is supported by clear and convincing evidence.
Cowger worked for Little and Miller, Chartered from December 14, 2006, until early December 2007, when the Kansas Supreme Court temporarily suspended his law license. On May 9, 2008, Cowger was disbarred. In re Cowger, 286 Kan. 52, 182 P.3d 1204 (2008). Cowger testified that his arrangement with Miller was for him to receive $70 per hour for the time he actually spent working on the firm’s cases. The corporate records are consistent with that testimony. For calendar year 2007, the corporation issued Cowger an Internal Revenue Service (IRS) Form 1099-MISC, reflecting that the corporation had paid Cowger $19,637 during the year. The corporation did not deduct withholding taxes or social security taxes from Cowger’s pay. A former IRS employee testified that IRS Form 1099-MISC is utilized to report a number of things, including nonemployee compensation paid to independent contractors. The form is not used for employee wages, which are reported on a W-2 form; nor is the 1099-MISC used for distributions to corporate shareholders, which are reported on a K-l form.
In 2007, the corporation collected net attorney fees of over $100,000, after payment of expenses. The bulk of the money was paid to Miller, ostensibly as salary, rental payments on the building and vehicles, and repayment of loans Miller made to the corporation. Miller controlled all of the financial affairs of the corporation. Cowger testified that his only concern was getting paid his hourly fee and that he did not consciously or knowingly have any interest in the corporate operations. The assertion that Cowger functioned as an independent contractor is, at least, highly probable.
The fundamental problem with the independent contractor arrangement is that, following Miller’s suspension, neither he nor his professional corporation had the authority to contract for Cowger’s services on the Little and Miller files. A suspended attorney is unable to undertake any further representation of a client after the effective date of the suspension order. Supreme Court Rule 218(a) (2009 Kan. Ct. R. Annot. 361). Obviously, then, the suspended attorney cannot hire an independent contractor to do the legal work which the suspended attorney is precluded from doing.
K.S.A. 17-2715 clarifies that a professional corporation does not affect the professional relationship between a person rendering professional services and a person receiving those services. Accordingly, if a shareholder or employee of the professional corporation does not have a valid attorney-client relationship in a case, then the corporation cannot separately have such a relationship, so as to have the right to contract for someone to do legal work on the file.
Miller s suggestion that he legitimized the arrangement by gifting the corporation to Cowger is legally unavailing and factually incredible. Such a transfer would have made Cowger the sole qualifying shareholder of the professional corporation. See K.S.A. 17-2712 (only duly licensed persons can be shareholders of a professional corporation); K.S.A. 17-2713 (only a shareholder can be a director or officer, other than secretary, of a professional corporation). As noted, the duties, rights, and privileges of an attorney-client relationship would have existed between Cowger and the client. K.S.A. 17-2715. He could not be both the responsible attorney and an independent contractor of the corporation on the same files.
Moreover, it is not entirely clear that it is statutorily permissible to resurrect the validity of a professional corporation after the disqualification of the sole shareholder by gifting the corporate shares to a qualified person. K.S.A. 17-2714 provides that upon the disqualification of the last qualifying shareholder, the professional corporation shall become a general business corporation and can amend its articles of incorporation to perform such functions as collecting accounts receivables, paying corporate debts, and otherwise winding up its affairs or conducting any business or activity which is permitted under the Kansas general corporation code. K.S.A. 17-2719 provides for the automatic forfeiture of the certificate of incorporation for a professional corporation if any shares of the corporation have been owned by an unqualified person for more than a year and no action has been timely instituted to fix the fair value of such shares. Further, it is unclear what role the regulating professional board might have in approving the name of a professional corporation when all of the corporate shares have been transferred. See K.S.A. 17-2709 (regulating professional board to certify its approval of proposed corporate name upon initial incorporation); K.S.A. 17-2712 (only requiring regulating board certification that transferee of professional corporation shares is duly licensed).
Nevertheless, the contention that Miller gifted the shares of Little and Miller, Chartered to Cowger is belied by the evidence. Cowger unequivocally said he was not a shareholder and he did not believe he was an officer of the corporation. He did not recall attending any corporate meetings or discussing the operation of the corporation with Miller. When questioned about corporate papers he might have signed, Cowger candidly admitted that he did not know what they were; that all he cared about was getting paid the $70 per hour; and that what went on with the corporation had no impact or bearing on him. Moreover, Miller’s personal handling of all of the corporate finances corroborated Cowger’s testimony that he was uninvolved in the corporation. Curiously, in 2008, after Cowger lost his law license, Miller filed papers with the Secretary of State which indicated that Miller owned the corporation. We have no explanation as to how someone that is unaware that he or she has been gifted corporate shares could form the donative intent to re-gift them. In short, Cowger did not accept the alleged gift of the corporate shares of Little and Miller, Chartered and did not assume ownership and control of the corporation.
Finally, we address Miller’s contention that the legal work he performed individually during his suspension was solely in the capacity of a law clerk, legal assistant, or receptionist. In re Wilkinson, 251 Kan. at 553, established that
“an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer’s functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact.” (Emphasis added.)
Miller argues that his work was of a preparatory nature and that his client contact was restricted to answering the firm telephone as a receptionist.
The problem here is more fundamental than the nature of the work Miller performed. Given the uncontroverted finding that Cowger was an independent contractor of the professional corporation, he would not be Miller’s “attorney-employer.” To the contrary, Miller was an employee of the professional corporation. Or dinarily, an independent contractor of a corporation would have no authority to supervise and direct the actions of the corporation’s employees. Here, Cowger confirmed that his responsibilities were limited to his contractual obligation and that he had no corporate responsibilities. That left Miller working for the corporation without attorney supervision. A suspended attorney cannot function independently as a law clerk or paralegal; he or she must work for and be supervised by a licensed attorney who is ultimately responsible for the paralegal work. See In re Rost, 289 Kan. at 308 (arrangement where suspended attorney agreed to sell licensed attorney his client base and suspended attorney would continue to provide administrative assistance was not an employer-employee relationship and not permissible); KRPC 5.3(b) and (c) (2009 Kan. Ct. R. Annot. 576) (responsibilities and liability of supervising attorney).
In conclusion, we find that Miller engaged in the unauthorized practice of law, in violation of KRPC 5.5 (2009 Kan. Ct. R. Annot. 580). Further, Miller’s actions constituted a violation of KRPC 8.4(a) (2009 Kan. Ct. R. Annot. 602), as explained in the final hearing report.
Failure to Cooperate
Pursuant to KRPC 8.1(b) (2009 Kan. Ct. R. Annot. 594), an attorney shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority in connection with a disciplinary matter. The hearing panel found that when Miller failed to provide the Disciplinary Administrator’s investigator with access to the requested case file, he violated that. rule.
Refore this court, Miller does not deny that he failed to provide the requested case file. Rather, he argues that, at the time of the request, the file had been transferred to and was under the control of Cowger, so that Miller had no authority to give the file to anyone. That position might have been more availing had it been proffered at the time of the request. However, the investigator related that Miller’s excuse for failing to bring the file to their meeting was that he had looked in the file and it did not contain the letter he believed the investigator was seeking. Accordingly, we find that Miller’s re fusal to provide the requested information was, at that time, a failure to cooperate in the investigation and, thus, a violation of KRPC 8.1(b).
Appropriate Discipline
Having determined that Miller engaged in the unauthorized practice of law while his license to practice law was suspended, we turn to the appropriate disposition. As noted, the hearing panel recommends disbarment. The panel’s recommendation on disposition is advisory only and does not prevent the court from imposing a different sanction. See In re Cline, 289 Kan. 834, 846, 217 P.3d 455 (2009); Supreme Court Rule 212(f) (2009 Kan. Ct. R. Annot. 337). However, as the panel noted and Miller concedes, our rules provide that a “[violation of any suspension order shall constitute grounds for disbarment.” Supreme Court Rule 218(c) (2009 Kan. Ct. R. Annot. 361). Moreover, we do not view Miller’s conduct to be an inadvertent violation, but rather a carefully planned scheme to circumvent the suspension order in order to continue his law practice. Accordingly, we accept the recommendation for disbarment.
Order of Discipline
It Is Therefore Ordered that respondent, Christopher R. Miller, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218; that the costs of these proceedings be assessed to the respondent; and that this opinion be published in the official Kansas Reports.
Davis, C.J., and Biles, J., not participating.
Richard B. Walker, District Judge, and Gary L. Nafziger, District Judge, assigned.
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The opinion of the court was delivered by
Luckert, J.:
Our resolution of this appeal emphasizes the requirement that a party opposing summary judgment must come forward with evidence to establish a dispute as to a material fact and must support the dispute by precisely citing to transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents in the record. In this case, Ben and Lavelle Frick (Fricks) failed to meet these requirements when responding to the City of Salina’s (City) motion for summary judgment. Consequently, we hold that the district court properly granted the City summary judgment on the Fricks’ claims that the City inversely condemned their property by denying them the ability to construct driveways or otherwise access their property, improperly refusing to grant them a building permit, and damaging their property.
Facts and Procedural rackground
This is the second time the Fricks have raised an appeal before this court. In the previous case, Frick v. City of Salina, 289 Kan. 1, 208 P.3d 739 (2009) (Frick I), the Fricks appealed the calculation of relocation benefits awarded under the Kansas Relocation Assistance for Persons Displaced by Acquisition of Real Property Act, K.S.A. 58-3501 et seq., after the City acquired, through the power of eminent domain, see K.S.A. 26-501 et seq., the Fricks’ real property at 1056 E. Pacific Avenue, on which the Fricks operated a large retail complex. The City acquired the property as part of a public improvement project, generally referred to as the North Ohio Street Improvement Project (the Project), which involved the reconstruction of North Ohio Street, the construction of a bridge over the Union Pacific railway lines, and the redesign and reconstruction of appurtenant side roads. In Frick I, we held that, under K.S.A. 58-3509(a), the district court applied an incorrect standard of review to the hearing examiner’s administrative findings. Consequently, we reversed and remanded to the district court for independent findings of fact and conclusions of law regarding the question of relocation benefits based on the record of proceedings before the hearing examiner. Frick I, 289 Kan. at 3, 23-24.
This case is an outgrowth of the same Project and is tied to the Project in two ways. First, the Project included improvements to Pacific Avenue, the street that abuts the subject property located at 830 E. Pacific Avenue. Second, the subject property is located adjacent to the Project and is the location to which the Fricks attempted to relocate some of their businesses that were dislocated by the Project. (For ease of reference we will refer to 830 E. Pacific Avenue as the “relocation site”).
According to the Fricks, their attempt to move their businesses to the relocation site was thwarted by the “inappropriate regulatory” actions of the City. They brought six counts alleging inverse condemnation claims based on the City’s: (1) denial of reasonable access to the relocation site during the Project; (2) construction activities that caused damages to the relocation site; (3) requirement that driveway entrances built by the Fricks be removed; (4) adoption of a moratorium ordinance restricting the installation of driveways, culverts, or other improvements within the right-of-way encompassed by the Project zone; (5) failure to issue a building permit to the Fricks; and (6) construction activities that altered drainage, caused water to be retained, and resulted in flooding of and damages to the relocation site.
The relocation site is comprised of approximately 10 acres located within the Fricks’ 21 acres of real property platted as the “Replat of Marysdale Addition.” (Only the relocation site, not the entire 21 acres, is the focus of the Fricks’ inverse condemnation claim.) As described by the Fricks, the relocation site consists of Lots 1, 2, and 3 in the northeastern comer of the replat of Mar-ysdale Addition, bordered on the north by Pacific Avenue. Although the relocation site is zoned “1-3 Industrial,” the past and current use of the property has been for agricultural purposes. The Fricks intended to obtain a building permit for Lot 3, the parcel on the east end of the relocation site.
Before the City’s Project, the Fricks’ property in the replat of Maiysdale Addition was served by one access point — a field entrance, i.e., dirt driveway — from Pacific Avenue at Lot 1, which is located at the west end of the relocation site. As part of the Project, the Kansas Department of Transportation installed a concrete driveway apron from the realigned Pacific Avenue to the Fricks’ property in roughly the same location as the previous field entrance to Lot 1.
At the time construction was beginning for the Project in late April or early May 2005, the Fricks constructed two dirt-fill driveway approaches (with reinforced concrete pipe drainage culverts) to Lot 3 from Pacific Avenue without first requesting or receiving a permit. These dirt driveways were installed in the construction zone and within the City’s right-of-way.
On May 2, 2005, the City enacted Ordinance 05-6962 as part of the Salina City Code. The Ordinance imposed a moratorium prohibiting the construction or installation (or the granting of any permits for the construction or installation) of any driveway crossings, culverts, or other improvements within the public right-of-way located within the Project and on Pacific Avenue, west to Front Street. The Fricks’ relocation site was located within the area covered by the moratorium. The City cited the following reasons for imposing the moratorium:
“1. The granting of permits for such driveway crossing cannot be properly administered until traffic safety studies have been completed in order to identify safe locations for such driveway crossings.
“2. Construction activity in the public right-of-way within the confines of the project may result in anticipated cost to the public due to either delays or the need to remove such improvements in conflict with the public project construction.
“3. Construction activity in the public right-of-way within the confines of the project could result in avoidable economic loss to private parties in the event such improvements must be removed in order to complete the public project.”
The moratorium remained in effect until February 25, 2008, when the Project was completed. It was lifted by Resolution OS-6596 upon the advice of the city engineer that the construction of the Project and the reconfiguration of the affected public streets within the confines of the Project had been completed and in use for a sufficient period of time that the traffic volumes and traffic patterns appeared to be established.
The Fricks first learned of the moratorium when the City’s Director of Public Works, Shawn O’Leary, sent them a letter on May 3, 2005, and advised them of the moratorium. O’Leary also advised the Fricks that their construction of “two driveway approaches on the south side of East Pacific Avenue” violated the City Code. He gave the Fricks notice to remove “all culverts, concrete, forms and earthen material from this location by Monday, May 9,2005.” The Fricks removed the driveways and culverts (also referred to as “Lot 3 driveways”) after receiving the letter.
On May 4, 2005, the Fricks sent a letter to O’Leary regarding the traffic safety studies mentioned in the moratorium. O’Leary’s responsive letter indicated that the studies are performed by traffic engineers or other qualified professionals on behalf of the property owner or developer. He encouraged the Fricks to submit their proposed development project to the City’s Development Coordinator Amy Lange.
For the next 10 months, there were communications between the Fricks and the City regarding a proposed building on Lot 3. On March 6, 2006, the Fricks submitted building application documents to the City and submitted additional revised plans in response to the City’s requests for additional information. Although their intent was originally to relocate a restauranhbar to that site, the Fricks never submitted a complete application for this type of building. They revised their request to obtain a “shell building” (cold storage) permit. The Fricks claimed to have submitted enough information necessary for obtaining a shell building permit or a “staged building” (foundation, walls, roof, and sewer lines) permit. As will be discussed in more detail, correspondence from Lange to the Fricks indicated otherwise and specifically listed numerous items that had yet to be submitted with their permit application.
During this same time period, construction continued on the Project. The City had not acquired any easements or rights-of-way on the Fricks’ relocation site because the improvements associated with the Project would not require any physical intrusion on the site. Nevertheless, the Fricks contended that contractors for the Project entered their property and caused damage. The Fricks also contended that the City diverted water onto their property and into the drainage ditches along Pacific Avenue, causing flooding problems.
When these issues could not be resolved, the Fricks brought suit. After discovery and identification of expert witnesses, the City filed its motion for summary judgment. The district court granted the City’s motion, finding that the material facts were undisputed and that the “controverted facts set out by [the Fricks] are disagreements between the parties about the removed [driveway] culverts and the building permit rather than controverted material facts.” The district court also found there was no “taking” in that the City’s actions did not result in the City’s obtaining possession and control of the Fricks’ property to tire exclusion of the Fricks. In addition, the district court, relying on Kansas precedent which was subsequently reversed in 2009, held that the Fricks failed to state a cause of action for inverse condemnation with regard to their property damage and flooding claims because they did not present any controverted facts establishing that the property damage and water problems were “necessary” to the completion of the Project. The district court’s other findings and conclusions will be discussed as needed.
The Fricks now appeal the district court’s decision to grant the City’s motion for summaiy judgment. The case was transferred to this court on the Fricks’ motion. See K.S.A. 20-3017. For ease of discussion, we have taken tire liberty of reordering and regrouping the seven issues identified by the Fricks in their appellate briefs.
Standard of Review/Principles of Law
Inverse condemnation proceedings are initiated by the party having a properly interest and are available when private property has been taken for public use without the initiation of formal condemnation proceedings by the government. Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 559, 215 P.3d 561 (2009). To establish a claim for inverse condemnation, a party must establish an interest in tire real property and a taking. Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). The factual component of the issue relates to the nature of an interest in the real property and the nature of the public use or regulation of that property. Here, the City submits that the facts related to those inquiries were not controverted, leaving only the question of whether .those circumstances constituted a compensable taking. That question, i.e., the question of whether there has been a com-pensable taking, is one of law. Korytkowski, 283 Kan. at 128.
The Fricks disagree and argue there were controverted issues of material fact and, as a result, summary judgment should not have been granted. When such an argument is raised in an appeal from an order of summary judgment, an appellate court applies the same summary judgment rules as does a district court. Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009). The standard a district court applies when considering a motion for summary judgment is a familiar one:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.’ ” Adams, 289 Kan. at 584 (quoting Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 [2009]).
When there is no factual dispute, appellate review of an order for summary judgment is de novo. Estate of Draper v. Bank of America, 288 Kan. 510, 517, 205 P.3d 698 (2009); Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008).
As we apply the summary judgment standard, we must also consider the procedural requirements of Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225), Rule 6.02 (2009 Kan. Ct. R. Annot. 38), and Rule 6.03 (2009 Kan. Ct. R. Annot. 42).
Rule 141 facilitates the examination of whether there are genuine issues of material fact. It requires the moving party to set “forth concisely in separately numbered paragraphs the uncon-troverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record).” Rule 141(a) (2009 Kan. Ct. R. Annot. 225-26). A similar requirement is imposed on any party opposing the motion for summary judgment. That party must set “forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment.” The party opposing the summary judgment also must make “precise references” to the transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents in the record. Rule 141(b) (2009 Kan. Ct. R. Annot. 226).
Over the years, this court has repeatedly emphasized that “ ‘Rule 141 is not just fluff — it means what it says and serves a necessary purpose.’ [Citation omitted.]” Rhoten v. Dickson, 290 Kan. 92, 104, 223 P.3d 786 (2010). Nevertheless, we have concluded an initial failure to comply with Rule 141 may be considered harmless and will “not be considered fatal if the party complies with the rule in subsequent filings before the district court renders judgment.” Rhoten, 290 Kan. at 105. The corollary to this conclusion is that a failure to comply with Rule 141 may be fatal if nothing is cited to support a party’s evidentiary allegations before the district court renders judgment. As we will discuss, this requirement becomes important as we examine some of the Fricks’ efforts to controvert facts.
Similar implications arise from Rule 6.02, relating to an appellant’s brief, and its counterpart provision in Rule 6.03, relating to an appellee’s brief. Those rules require that statements of the facts “be keyed to the record on appeal by volume and page number so as to make verification reasonably convenient. Any material statement made without such a reference may be presumed to be without support in the record.” Rule 6.02(d) (2009 Kan. Ct. R. Annot. 38); see Rule 6.03(c) (2009 Kan. Ct. R. Annot. 42-43). We have found that the Fricks’ citations to the record are frequently missing from or inaccurate in their briefs, making it difficult to find documents or support for their position in the record. Again, as more fully discussed, these failures impact tire outcome of this appeal.
ISSUE 1: Did the district court err in granting the City’s motion for summary judgment with respect to the Fricks’ claim that the City interfered with the Fricks’ use of the relocation site, which resulted in an inverse condemnation of that property? (Appellants’ Issues I, III, and V.)
The Fricks first contend that the district court erred in granting the City’s motion for summary judgment on their claim that the City interfered with their use and development of the relocation site. The Fricks specifically argue that all reasonable access was denied in that (a) they were required to remove the Lot 3 driveways, (b) the City passed a moratorium prohibiting the construction of driveways, culverts, or other improvements within the right-of-way of the Project and on Pacific Avenue, and (c) the City failed to issue a building permit sought by the Fricks.
A. Did the City block or take away access to the relocation site and was the required removal of dirt-fill driveways constructed by the Fricks a taking?
First, we focus on the Fricks’ complaints regarding their driveway access to the relocation site. Some of their arguments address whether there was a taking because the City removed access that existed before the Project. Other arguments focus on the removal of the Lot 3 driveways installed by the Fricks at the beginning of the Project.. None of the arguments raise disputes about the law; the disputes are whether the facts support the claims.
1. Right of Access
This court has consistently observed that “ ‘right of access’ is traditionally defined as an abutting landowner’s common-law right of access from the landowner’s property to abutting public roads.” City of Wichita v. McDonald’s Corp., 266 Kan. 708, 718, 971 P.2d 1189 (1999); see also Korytkowski, 283 Kan. at 129 (same). When the government actually blocks or takes away existing access to and from property and an abutting road, the landowner is generally entitled to compensation. K.S.A. 26-513(d)(15) (provides for compensation under the Kansas Eminent Domain Procedure Act, K.S.A. 26-501 et seq., for damages for “loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining”); McDonald’s Corp., 266 Kan. at 718; see Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 236-37, 559 P.2d 771 (1977) (upholding finding of damages for reduction in property value based on elimination of access point to abutting highway); McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, Syl. ¶ 4, 524 P.2d 1165 (1974) (landowner compensated for diminution of value when one entrance to business from abutting highway permanently closed).
The Fricks seek to apply these rules by arguing they had access from the relocation site to Pacific Avenue before the Project began, but they had “no access whatsoever” after the Project’s completion. In their amended petition, they alleged that the relocation site became essentially “landlocked” with no access. In making this assertion, the Fricks focus on the two dirt driveways from Lot 3 to Pacific Avenue, installed by the Fricks, subsequently removed by the Fricks upon the request of the City, and never reinstalled by the City. Similarly, the Fricks in one of their appellate briefs, without citation to the record, state that “it is the Fricks’ position that these driveways had been on the subject property for many years and were grandfathered farm access that was exempt and therefore valid under the Ordinance.”
Contrary to these arguments and assertions, the uncontroverted evidence in the summary judgment record was that the Fricks had one driveway at the relocation site before the Project began, a field entrance from Pacific Avenue to Lot 1, and the entrance was reconstructed by the City (as a concrete apron) in approximately the same pre-Project location. Then the Fricks, without obtaining a permit, constructed the Lot 3 driveways in late April or early May 2005, which was at the beginning stages of the Project. Until the Fricks installed these dirt driveways from Pacific Avenue to Lot 3 during the City’s construction efforts, the Fricks never had direct driveway access to Lot 3 from Pacific Avenue. Rather, they had only indirect access to this portion of the relocation site through Lots 1 and 2. At the summary judgment stage, the Fricks failed to cite to any evidence establishing their claim that the Lot 3 driveways existed before the Project. Likewise, on appeal they fail to cite to places in the record on appeal where they supported their allegations with evidence before the district court.
Hence, the Fricks did not come forward in opposing the motion for summary judgment with evidence that creates a factual controversy regarding the taking of existing access. Consequently, we conclude there was not a compensable taking. See Korytkowski, 283 Kan. 122, Syl. ¶ 6 (“[W]here the landowners’ property was not physically taken and access to the abutting roadway was not disturbed, the necessity of a more indirect route to and from the landowners’ property did not constitute a taking under Kansas law based on either 'right of access’ or ‘restricted access.’ ”); Teachers Insurance & Annuity Ass'n of America v. City of Wichita, 221 Kan. 325, 335, 559 P.2d 347 (1977) (“Access may be defined as the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the road or highway without unreasonable interference. Such a right to be of any substantial utility must necessarily include the owner’s invitees and licensees.”).
2. Driveway Removal
The Fricks also argue that the “forced removal” of the Lot 3 driveways was a compensable taking. On appeal, they do not explain why the City’s requiring the removal of the driveways was erroneous or amounted to a taking. They merely assert that the driveways were exempt from the City Code. In other words, they do not dispute that the City had the right to require the removal of any driveway that was constructed in violation of the City Code. Their dispute relates to whether there was a code violation and whether the only code provision at issue is the one specifically mentioned by the City in its letter demanding the removal of the driveways.
This letter was sent on May 3, 2005, shortly after the Fricks installed the Lot 3 driveways. In the letter, the City’s Director of Public Works O’Leary notified the Fricks that the construction of “the two driveway approaches on the south side of East Pacific Avenue” was in violation of “city codes including Section 35-151 involving required permits for driveway approaches.”
Salina City Code Ordinance § 35-151 (2010) (enacted in 1966) provides in part that “[n]o sidewalks, driveway approaches, curbing, guttering or any other concrete work in any street or public grounds in the city shall be constructed, reconstructed or rebuilt” until a permit has been issued. Although the Fricks removed the Lot 3 driveways, they argued that City Ordinance § 35-151 did not apply because it pertains to the installation of concrete structures and the Lot 3 driveways were constructed using dirt fill.
During district court proceedings, the City asserted that the Fricks’ installation of tire Lot 3 driveways violated Salina City Ordinance § 35-129 (2010) (enacted in 1966). At or before the summary judgment hearing, the Fricks did not advance any arguments specific to City Ordinance § 35-129, except to point out that the City’s May 3,2005, letter requesting removal of the Lot 3 driveways did not specifically mention that particular ordinance.
In its order of summary judgment, the district court found that the Fricks violated City Ordinance § 35-129, which provides: “It shall be unlawful for any person to construct, alter or extend, or permit to cause to be constructed, altered or extended, any driveway approach which can be used only as a parking space or area between the curb and private property.” On appeal, the Fricks do not dispute that the Lot 3 driveways constituted an “area between the curb and private property.” Rather, they again focus on the fact the ordinance was not specifically mentioned in the May 3, 2005, letter.
They make the same argument as to yet another City Code section that the City raised for the first time on appeal — Salina City Code Ordinance § 35-128 (2010), which requires “[a]ll driveway approaches shall be paved.” This requirement has also been in place since 1966. Because this section requires driveways to be paved, it triggers the permit requirements of City Ordinance § 35-151, the one City Code provision specifically referenced in the May 3 letter. The Fricks ignore this closing of the circle and the fact that the Lot 3 driveways clearly violated one or more provisions of the City Code and continue to question whether the various provisions, including their interrelationship, can be considered when the May 3, 2005, letter only mentioned City Ordinance § 35-151.
In response to that argument, the City contends we can consider the violations of City Ordinances §§ 35-128 and 35-129 because the May 3, 2005, letter, referred broadly to “city codes,” even though it gave only one specific example, City Ordinance § 35-151. According to the City, the letter accomplished its purpose by giving notice that the driveways did not conform to code requirements and that the City was enforcing its code by requiring the removal of the nonconforming structures.
As the City argues, because the facts relating to the driveways are not disputed, a question of law is presented as to whether there was a City Code violation. See City of Wichita v. Hackett, 275 Kan. 848, 850, 69 P.3d 621 (2003) (interpretation of municipal ordinance is question of law over which appellate courts exercise unlimited review). Further, because there is solely a question of law raised by the application of the relevant City ordinances, it can be raised for the first time on appeal. See Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). The undisputed fact that the Lot 3 driveways were entirely dirt establishes violations of the various provisions of the City Code.
As the Fricks agree, reasonable regulation of private property under the police power is not a taking and therefore does not require payment of just compensation. See Small v. Kemp, 240 Kan. 113, 116-17, 727 P.2d 904 (1986); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126-27, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985) (“[G]ovemmental land-use regulation may under extreme circumstances amount to a ‘taking’ of the affected property,” but the mere imposition of a permitting or regulatory process does not imply that a taking has occurred.). And the Fricks do not argue due process violations, that the City Code sections were unreasonable regulations of the use of private property, or that removal of the driveways was not an appropriate enforcement mechanism.
B. Did the City’s enactment of a moratorium ordinance prohibiting construction of driveways, culverts, or other improvements within the right-of-way of the Project and on Pacific Avenue exceed the scope of “valid police power” and result in a taking?
In a related argument, the Fricks contend that the City’s enactment of the moratorium ordinance — or “interim development control” as moratoria are often called— exceeded the scope of “valid police power.” The moratorium remained in effect from May 2, 2005, until February 25, 2008, and prohibited the construction of driveways, culverts, or other improvements within the right-of-way of the Project and on Pacific Avenue. The Fricks complain that the “City exercised total control over the Frick property that [did] not allow the Fricks to develop within the 3-year period of time due to the Moratorium.” The Fricks also contend that the moratorium constituted a taking in that it was directed specifically at the Fricks. These contentions lack merit.
The United States Supreme Court has identified two types of regulatory action that constitute categorical or per se takings. “First, where government requires an owner to suffer a permanent physical invasion of her properly — however minor — it must provide just compensation.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538, 161 L. Ed. 2d 876, 125 S. Ct. 2074 (2005) (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164 [1982]). A second categorical rule applies to “regulations that completely deprive an owner of ‘all economically beneficial us[e]’ ” of his or her property. (Citation omitted.) Lingle, 544 U.S. at 538. If the facts of a governmental takings case do not fit within these two categories, then the takings claim must be analyzed under the catch-all standard promulgated in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 57 L. Ed. 2d 631, 98 S. Ct. 2646, reh. denied 439 U.S. 883 (1978).
The Penn Central factors were held to be applicable when an alleged taking is temporary in nature in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 342, 152 L. Ed. 2d 517, 122 S. Ct. 1465 (2002). In so holding, the United States Supreme Court declined to adopt a per se categorical test for temporary moratoriums on development. The Court noted: “A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking.” Tahoe-Sierra, 535 U.S. at 335. “ 'Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.’ [Citation omitted.]” Lingle, 544 U.S. at 538.
Hence, to determine whether the moratorium imposed in this case was a taking, we must apply the Penn Central standards. Those factors were defined in the context of the Court considering whether restrictions imposed by the City of New York, which prevented substantial additions to Grand Central Station, amounted to a taking. The Court noted that “[t]he question of what constitutes a ‘taking’ for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty” and as a result the Court was “unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons,” with the result being “ad hoc, factual inquiries.” Penn Central, 438 U.S. at 123-24. Nevertheless, citing Goldblatt v. Hempstead, 369 U.S. 590, 594, 8 L. Ed. 2d 130, 82 S. Ct. 987 (1962), the Penn Central Court identified three “factors that have particular significance:” (1) the economic impact of the regulation on the claimant, (2) the extent by which the regulation has interfered with distinct, investment-backed expectations, and (3) the character of the governmental action. Regarding the third factor, the Court observed: “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, [citation omitted], than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central, 438 U.S. at 124; see also McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, 332-34, 49 P.3d 522 (2002) (discussing Penn Central).
The analysis of the Penn Central factors must focus on the “parcel as a whole,” not discrete segments. Penn Central, 438 U.S. at 130-31. It is insufficient to establish a taking “ ‘by showing that [the landowner has] been denied the ability to exploit a property interest that [it] heretofore had believed was available for development.’ ” Mount St. Scholastica v. City of Atchison, Kansas, 482 F. Supp. 2d 1281, 1298 (D. Kan. 2007) (quoting Penn Central, 438 U.S. at 130).
Explaining the rationale of Penn Central, this court has indicated that “[w]here the government reasonably concludes that the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of land, compensation need not accompany a reasonable prohibition. [Citations omitted.]” Garrett v. City of Topeka, 259 Kan. 896, 916, 916 P.2d 21 (1996). As more specifically relevant to the circumstances of this case, we have held that the private rights of an abutting landowner on an existing street or highway are subordinate to the right of the public to proper use of the street or highway, so that the exercise of rights of abutting landowners is subject to reasonable regulation and restriction for the purpose of providing reasonably safe passage for the public. But regulations or limitations cannot be sustained which unduly or unreasonably curtail or restrict rights of an abutting landowner. Smith v. State Highway Commission, 185 Kan. 445, 452, 346 P.2d 259 (1959).
In the present case, the district court applied the Penn Central factors and held that the moratorium passed by the City was a reasonable police power. The court observed that the moratorium was limited to the time of construction and establishment of new traffic patterns. In addition, it applied to the entire construction area. And during the time the moratorium was in effect, the Fricks began submitting building development plans. As for the Fricks’ contention that die moratorium was directed specifically at them, the district court stated:
“The moratorium may have been discussed and passed following the plaintiffs’ installation of culvert driveways, but there is no language in die moratorium nor are there any controverted material facts to indicate it affected the plaintiffs in a special or particular manner different from the other property owners in the construction area.”
In other words, the Fricks’ installation of the Lot 3 driveways acted merely as a catalyst for the City’s taking action.
Examining the Penn Central factors, we cannot conclude that the moratorium resulted in a compensable taking of the Fricks’ relocation site. As for the first two Penn Central factors — the economic impact of the regulation and the impact on investment-backed expectations of the owner — the City points out that the subject property had previously been used for agricultural purposes and continued to be used for agricultural purposes throughout the period in which the moratorium remained effective.
The Fricks respond that “[t]his moratorium was in place for the entire-period of time the Fricks were attempting to relocate. This moratorium cost the Fricks [a] $175,000.00 tax credit, issued under I.R.S. Code § 1033.” Internal Revenue Code (I.R.C.) § 1033, see 26 U.S.C. § 1033 (2006), provides that a condemnee is taxed on the full gain it realizes on a condemnation award unless it reinvests the condemnation proceeds within a certain period of time. See Baylin v. United States, 30 Cl. Ct. 248, 251 (1993). The Fricks supported this assertion and calculation with the deposition testimony of their tax expert David Rettele, in which he opined that the Fricks had to reinvest any gains within 3 years from the time of the condemnation of 1056 E. Pacific Avenue. According to Ret-tele, the start of the 3-year period was sometime between August 2003 and November 2004.
The City points out that this tax consequence and the loss of any investment-backed expectations in the development of the relocation site is “directly attributable to the Fricks’ refusal to comply with the City’s building permit application requirements.” The essence of the City’s argument is that the driveway moratorium did not prevent the Fricks from reinvesting, either on the relocation site after acquiring a building permit or on other property if they eventually were unable to obtain a permit to build on the relocation site. As will be more fully discussed in the next issue, while the moratorium was in effect, the City was participating in ongoing communications with the Fricks regarding the potential development of the relocation site. Despite this fact, the Fricks never submitted a completed application. Consequently, it was not the drive way moratorium but the failure to obtain a building permit that prevented the investment of the proceeds into the development of the relocation site; the moratorium itself did not interfere with the Fricks’ building application process.
Further, if there was any effect on economic viability by temporarily disallowing the installation of driveways, the economic viability of the relocation site was delayed, rather than destroyed. Delaying the sale or development of property during the governmental decision-making process may cause fluctuations in value that, absent extraordinary delay, are incidents of ownership rather than compensable takings. Agins v. Tiburon, 447 U.S. 255, 263 n.9, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980), overruled on other grounds Lingle, 544 U.S. 528 (2005).
In arguing that the delay was a taking, the Fricks cite two cases from other jurisdictions, Robins v. Town of Hillsborough, 361 N.C. 193, 639 S.E.2d 421 (2007), and State ex rel. Hilltop Basic v. Cincinnati, 167 Ohio App. 3d 798, 857 N.E.2d 612 (2006). Neither case is particularly helpful.
In Robins, the town Board adopted a moratorium temporarily suspending the review, consideration, and issuance of permits and applications for manufacturing and processing operations involving petroleum products. Before the moratorium took effect, the plaintiff had submitted an application seeking approval of his site-specific development plan, in which he proposed to construct an asphalt plant on the property. At the time the moratorium took effect, the plaintiff s asphalt plant was the only development plan under consideration by the Board which was affected.
The North Carolina Supreme Court held that by enacting the moratorium, the town had not followed its own rules and ordinances requiring the Board to approve or deny the application. It effectively usurped the Board’s responsibility in the matter. Thus, the plaintiff was entitled to have his application reviewed under the ordinances and procedural rules in effect at the time he filed his application. Robins, 361 N.C. at 199.
In contrast, the Fricks did not have a pending permit application for the construction of a building or driveways at the time the moratorium was passed. It is significant that the City’s basis for requiring the removal of the Lot 3 driveways was that the Fricks had failed to obtain a permit or otherwise comply with already enacted City Code provisions, specifically with City Code provisions that had been in effect since 1966.
In Hilltop Basic, the City of Cincinnati denied access to a piece of property, leaving it landlocked so that the only access would be by boat. The Ohio Court of Appeals held that the City’s denial of the landowners’ application for a curb-cut/driveway permit for access to the public road, which denial made the undeveloped riverfront property inaccessible from the land, constituted a taking. See Hilltop Basic, 167 Ohio App. 3d at 806-09. Our case is distinguishable from Hilltop Basic in that the Fricks continued to enjoy the same access to the relocation site as they had prior to the Project — the access driveway on Lot 1.
More similar to this case are the several cases recognizing that comparable moratoria are widely used among land-use planners to preserve the status quo while formulating more permanent development strategies and which find such moratoria are not takings. See, e.g., Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478, 483 (D. N.M. 1995) (30-month moratorium on development of lands within the Petroglyph National Monument was not a taking); Zilber v. Town of Moraga, 692 F. Supp. 1195, 1206-07 (N.D. Cal. 1988) (18-month development moratorium during completion of a comprehensive scheme for open space did not require compensation); Williams v. City of Central, 907 P.2d 701, 703-05 (Colo. App. 1995) (10-month moratorium on development in gaming district while studying city’s ability to absorb growth was not a compensable taking); Woodbury Place Partners v. Woodbury, 492 N.W.2d 258, 262 (Minn. App. 1992), cert. denied 508 U.S. 960 (1993) (moratorium pending review of plan for land adjacent to interstate highway was not a taking even though it deprived property owner of all economically viable use of its property for 2 years); Nolen v. Newtown Tp., 854 A.2d 705, 707-10 (Pa. Commw. 2004) (2-year moratorium on development was not a taking because there were other uses available, including farming, that were not affected by the moratorium); see also Riviera Drilling and Exploration Co., Inc. v. United States, 61 Cl. Ct. 395, 404-05 (2004) (6-month delay in issuing permit not a taking).
In these cases, the reasonableness of the delay is often dependent on the reason for the moratorium. This consideration is closely tied to the third Penn Central factor — the character of the government action. Here, the City argues that the moratorium was enacted to promote the common good. As stated in the City Council’s resolution, the purpose of the moratorium was (1) traffic safety, (2) the need to avoid costs to the public due to delays caused by conflicts with private construction or because of the need to remove private improvements in conflict with the Project’s construction, and (3) the need to avoid economic loss to private parties in the event such improvements had to be removed in order to complete the Project. Further, the moratorium was limited to the construction or installation of driveways, culverts, or other improvements within the confines of the Project and within the right-of-way. It did not restrict development of adjacent private property outside the boundaries of the right-of-way. These factors lead us to conclude the moratorium was facially reasonable.
Nevertheless, the Fricks contend that the moratorium was discriminatory and made in bad faith because it was specifically directed at diem. They cite no evidentiary support for this contention, however. Rather, they merely claim that “Mr. [Bengtsonj’s statements confirm this.” The Fricks offer no explanation for what these statements were, nor do they offer any citation to the record. Our review of the record finds no support for the Fricks’ assertion. Our review did discover that Greg Bengtson, one of the attorneys representing the City at the summary judgment hearing, argued there that the moratorium was “not directed uniquely to the Fricks.” Recognizing that the situation involving the Fricks’ Lot 3 driveways created a “wake-up call” due to the “magnitude and effect of the [Pjroject on that vicinity,” Bengtson argued the City found it was necessary “to the overall project” that there would be “no circumstance under which a [driveway] permit during this particular time would be warranted administratively . . . whether it was the Frick property or any of the other properties in the vicinity . . . that were affected by the moratorium.”
These statements do not support the Fricks’ arguments. More importantly, die statements are not evidence and do not satisfy Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225). The un-controverted facts are that the Project included the property of landowners other than the Fricks and that the moratorium applied to all properties in the Project area, facilitated a public purpose, and existed for a reasonable length of time corresponding to the Project period and the establishment of traffic flow in the area. The public safety, general welfare, and economic concerns associated with the moratorium constituted reasonable regulation by the City. The implementation of the moratorium did not result in a taking.
C. Did the City’s failure to issue a building permit to the Fricks constitute a taking?
The moratorium issue ties into the Fricks’ next contention that the City’s failure to issue a building permit constituted a taking. The Fricks essentially assert that the City’s failure to issue a building permit is a taking of property without payment of just compensation or without having afforded rights of due process.
As previously noted, it is generally recognized that the mere imposition of a permitting or regulatoiy process does not imply that a taking has occurred. It is only “under extreme circumstances [that a land use regulation will] amount to a ‘taking’ of the affected property.” Riverside Bayview Homes, 474 U.S. at 126. The City argues this situation cannot be considered such a circumstance because a completed building permit application was never submitted. The City further argues the issue is not ripe because a permit has never been denied.
1. Ripeness
We will first focus on the question of whether the takings claim is ripe given that that there has never been a denial of a building permit. As the Federal Circuit Court of Appeals has stated: “[T]he initial denial of a permit is still a necessary trigger for a ripe takings claim. If the government denies a permit, then the aggrieved party can seek compensation.” Boise Cascade Corp. v. United States, 296 F.3d 1339, 1347 (Fed. Cir. 2002), cert. denied 538 U.S. 906 (2003). The City’s position that this issue is not ripe because there has not been a “final decision” with regard to a building permit is further supported by Mid Gulf, Inc. v. Bishop, 792 F. Supp. 1205 (D. Kan. 1992).
In Mid Gulf, the property owner sued the City of Lansing, Kansas, and certain municipal officers, alleging damages for civil rights violations, prima facie tort, and inverse condemnation arising out of the denial of a building permit and the denial of a conditional use permit for drilling for oil and gas within the city limits. The federal district court held that the property owner’s inverse condemnation and substantive due process claims were not ripe for review where there had been no determination by the city of what level of development would finally be allowed on the property, the parties were currently involved in state court litigation regarding whether the property would be annexed as part of the city, and it was still entirely possible that the property owner would be allowed to develop the subdivision as originally planned. Mid Gulf, 792 F. Supp. at 1209-10; cf. Shaner v. Perry Tp., 775 A.2d 887, 892-93 (Pa. Commw. 2001) (regulatory taking shown where township refused to issue landowner a permit to use land in a commercial district in any way whatsoever, including uses expressly permitted in the commercial district).
The same conclusions apply here. It is still entirely possible that the Fricks’ planned development of the relocation site would be approved. They simply must comply with the application requirements in order for the application to be considered by the City. As found by the district court in its order of summary judgment, “the City stands ready and willing to review and consider any complete building application from plaintiffs. This would include identified driveway locations and configurations.”
2. Extraordinary Circumstances
There are exceptions to the ripeness requirement, however. In a footnote, the Federal Circuit pointed out two, stating: “An extraordinary delay in permit processing or bad faith on the part of the agency can give rise to a ripe takings claim notwithstanding the failure to deny the permit. [Citation omitted.]” Boise Cascade Corp., 296 F.3d at 1347 n.6. The Fricks make arguments relating to both exceptions. Specifically, they argue that they submitted the necessary documents but the City delayed issuing a permit and that “[t]here was a building permit denial by [the City’s] constantly adding new requirements.”
The Fricks cite several cases where one or the other of these exceptions was found to apply. See, e.g., Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993, 996-97 (1st Cir. 1983) (freezing of property owner’s land for 14 years by reserving land for future public improvements or condemnation, without actually condemning land, amounted to unconstitutional deprivation of property); Q.C. Const. Co., Inc. v. Gallo, 649 F. Supp. 1331, 1335 (D. R.I. 1986) (moratorium on construction declared by town council resulted in taking of developer’s property without due process of law, as it was constitutionally inappropriate response to problem with inadequate sewer line); Eaton v. City of Solon, 598 F. Supp. 1505, 1512 (N.D. Ohio 1984) (in civil rights action seeking money damages, unreasonable delay by governmental agencies or state actors, in and of itself, is a constitutional violation; there are no lawful reasons for delays not related to legitimate, governmental purpose or function and hearings must be granted at a meaningful time and in a meaningful manner).
Relying on these cases, the Fricks argue the City unreasonably delayed issuing a permit. In responding to the City’s motion for summary judgment and its statement of fact that a completed building permit application had not been submitted, the Fricks provided record citations to evidence from two witnesses, City employees O’Leary and Lange. Relating to O’Leary, the Fricks cited to page 18 of O’Leary’s deposition. We are hindered in our review of this evidence because we cannot find an exhibit that is clearly identified as page 18 of that deposition, and the Fricks have not provided a citation to the record on appeal. Our review of the summary judgment documents revealed an unidentified attachment to the Fricks’ summaxy judgment response that clearly is a page from a deposition and is numbered “18.” We assume this page is the referenced exhibit. The first several lines of the page address the moratorium. Then, the witness is asked if “applications for building permits” had been submitted by the Fricks. The witness answered, “Yes.” The witness was then asked to explain “what that application entailed.” The witness answered, “It was a long, protracted matter, but I will do my best here. My recollection is it was an application for a shell building on that easternmost parcel.” However, the witness does not state that a complete application was ever submitted.
This distinction and the importance of this distinction is revealed by the other record citations given by the Fricks, Lange’s affidavit and her April 21, 2006, letter. This letter acknowledged the submission of an application and recognized the change in the request for a shell building permit. However, the primary focus of the letter was identification of the items missing from the request. The letter noted the submittal was “incomplete and does not allow staff to begin a building permit plan review.” In other words, the Fricks’ Rule 141 citations to the record did not controvert the fact that a completed permit application was never submitted.
Moreover, before the district court, the Fricks did not cite to evidence establishing that the City continued to add requirements. Rather, the uncontroverted facts show that the City explained what had to be submitted with the application for a building permit and merely persisted in the demand that everything be submitted. In fact, after the Fricks changed their request from the restaurant/bar permit to a shell building permit, the City in Lange’s lengthy April 21, 2006, letter outlined the differences in the requirements for each and explained with specificity what needed to be provided. Lange stated: “Your application describes the work as a shell building, and that representation is a key component of the review you have requested by the City.” The letter continued:
“Please modify your submittal documents to include the following information in addition to the information provided on March 20, 2006 and April 19, 2006 to complete your submittal:
“• Survey
“• Provide the legal description and survey of the zoning lot (the legally described area for which a permit is being requested). This description must include any improved areas on the site such as the parking lot.
“• Identify the parcel area in square feet.
“• Site Plan' — Reference Salina City Code Section 42-412
“• Identify driveway locations and proposed driveway configurations with respect to the newly constructed Pacific Avenue.
“• Show the existing field entrance/driveway relative to the proposed driveways.
“• Identify any existing and proposed utilities within and adjacent to the site plan. Please show the existing public water line as currently located adjacent to the site and proposed plans to connect private service lines or private fire lines for the proposed new building.
“• Identify the proposed drainage plan in addition to existing contours or elevations. The drainage plan should include culvert sizes, lengths and materials under driveways. Please reference City Driveway Standards and City Storm Drainage Design Criteria.
“• Identify the name, address and phone number of the applicant.
“Once your permit submittal has been determined complete, plan review will begin. City staff has set a performance goal of completing an initial plan review in 10 working days. At the end of 10 working days, you will receive either a plan review letter with corrections noted or a building permit.”
The letter also answered a large list of questions previously submitted by the Fricks, involving requirements for zoning certification, architectural drawings, water service drawings, sewer service drawings, electrical drawings, mechanical drawings, equipment drawings, door hardware schedule, food service establishment plans and approvals, parking lot design, fire protection plans, fire alarm drawings, utility plans, survey, site plan, code footprint, and phases of permits issued. Because submittal requirements, review, and approval would vary significantly depending on the occupancy classification (restaurant/bar building versus cold storage building), Lange’s responses to the Fricks’ questions included distinctions between the requirements of each classification.
According to Lange’s affidavit, correspondence continued between the City and the Fricks for the next few months. Then, at a meeting on June 7, 2006, at which the Fricks, representatives of the City, and counsel for both sides were present, the parties discussed and clarified the deficiencies in the Fricks’ previous sub-mittals. The Fricks fail to show how any of the cited problems were new requirements.
At that meeting and upon the request of the Fricks, Lange returned the bulk of their previous permit application submittals, retaining for the City’s records only one copy of the March 20, 2006, submittal. Lange’s affidavit further indicated that on January 18, 2007, the Fricks submitted more documentation in reference to their original application, but in its response, the City indicated its understanding that the original submittals were “no longer current or applicable; that the Fricks had withdrawn their original application submittals; and that the Fricks would need to submit a complete set of the required building permit application documents before any plan review could begin.” Lange averred that her employment with the City ended on February 6, 2008, and from January 2007 until February 2008, there had been no significant correspondence between the City and the Fricks with regard to their building permit application.
Even Robert Chapman, expert for the Fricks and former building inspector for the City of Raytown, Missouri, acknowledged in his deposition that the Fricks had not submitted all of the information requested by the City. During Mr. Frick’s deposition, he acknowledged that even after modifying the application to one seeking to obtain a permit for a shell building, he failed to submit all the information requested by the City because “we couldn’t get that accomplished.” Further, he acknowledged that the code footprint submitted by the Fricks was incomplete. When asked whether he had submitted the information required by the City regarding culvert sizes, lengths, or materials under the proposed driveways, Frick replied that such information “wasn’t necessary.” Frick’s deposition is replete with instances where he did not believe all of the City’s requirements should apply to him. For example, when asked, “If this is what the City is telling you [that] you need to do to obtain a building permit, why didn’t you do it?,” Frick replied, “I guess it’s not possible because my- — my people couldn’t do it.” Frick could not point to any point in time when he had submitted a complete building permit application or provided a completed application.
Hence, the uncontroverted evidence is that the delay was not caused by the City but by the Fricks’ failure to submit a completed application. The district court correctly determined that the Fricks have alleged no controverted facts establishing a taking because of the City’s actions on the Fricks’ building permit application and no ripeness exceptions apply.
ISSUE 2: Did the district court err in granting the City’s motion for summary judgment with respect to the Fricks’ inverse condemnation claims involving (1) property damage allegedly caused by contractors working on the City’s Project and (2) flooding and drainage problems allegedly caused by the Project’s road realign-mentsP (Appellants’ Issues II and VI.)
Next, the Fricks contend that the district court erred in granting the City’s motion for summary judgment with respect to the Fricks’ inverse condemnation claims involving (1) property damage allegedly caused by contractors working on the City’s Project and (2) flooding and drainage problems allegedly caused by road realignments completed for the Project.
With respect to the property damage claim, the Fricks alleged that the contractors drove onto their property during construction efforts on the Project and caused damage such as trampling crops, creating tire tracks, displacing gravel, and leaving “construction debris” on the property.
Relying on Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1190, 135 P.3d 1221 (2006), cert. denied 549 U.S. 1265 (2007), overruled in part and disapproved in Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 567-68, 215 P.3d 561 (2009) (citing, discussing, and applying K.S.A. 26-513[a]), the district court found that the Fricks failed to state a cause of action for inverse condemnation in that they “failed to allege any controverted facts that would establish that any damage caused by contractors was necessary to complete the road project.” In Kau Kau, this court held that damage to private property caused by contractors working on a public road construction project did not support a cause of action for inverse condemnation when the damage was not “necessary” to complete the road construction project and, instead, the landowners’ claim sounded in tort. 281 Kan. at 1190.
With respect to the flooding and drainage claim, the Fricks alleged that “[a]fter completion of the Ohio Street Overpass project, the Plaintiffs’ property has been inundated by storm water drain age, water retention, water flowage, water drainage, impounding of water and release of water.” They further alleged that the business records of the design and construction company “clearly establish that the City of Salina intended to use the subject property of the Fricks for the purpose of storm water drainage, water retention, water flowage, water drainage, impounding of water and release of water.” Because of these flooding and drainage problems, argued the Fricks, they would be unable to farm their property or to commercially develop it.
Relying on Estate of Kirkpatrick v. City of Olathe, 39 Kan. App. 2d 162, 178 P.3d 667 (2008) (Kirkpatrick I), rev'd Estate of Kirkpatrick, 289 Kan. 554 (Kirkpatrick II), the district court made essentially the same finding that it made regarding the Fricks’ other property damage claim: “The plaintiffs have also not presented any controverted facts to establish that any flooding or water retention problems after the road construction were necessary to the completion of the Overpass Project.” Consequently, the court concluded that the Fricks failed to state a cause of action for inverse condemnation.
In Kirkpatrick I, 39 Kan. App. 2d 162, Syl. ¶ 5, the Court of Appeals followed the rationale in Kau Kau, that mere damage to an adjoining property is not a compensable taking unless the damage was “necessary” to the completion of the public use project. The homeowner’s basement was allegedly damaged due to the diversion of water when the City of Olathe constructed a roundabout at the road intersection, excavating the land and changing the grade. The Court of Appeals concluded that because the diversion of water was not necessary to the completion of the city’s project, there was no compensable taking of the adjoining homeowner’s property. Kirkpatrick I, 39 Kan. App. 2d at 169.
Subsequent to the district court’s decision in the Fricks’ case, we granted review of Kirkpatrick I. In doing so, we revisited the discrepancy between the rationale of Kansas case law, which has held that damage is only compensable if it is “necessaiy” to the completion of such a project, and the Kansas Eminent Domain Procedure Act (EDPA), K.S.A. 26-501 et seq., which recognizes that a compensable taking includes “property damaged” during the course of a public improvement project.
In Kirkpatrick II, 289 Kan. at 559, this court observed that K.S.A. 26-513(a), which defines the actions for which compensation is required under Kansas eminent domain law, states: “ ‘Private property shall not be taken or damaged for public use without just compensation.’ ” (Emphasis added.) This language has remained unchanged since the EDPA’s original enactment in 1963. See L. 1963, ch. 234, sec. 13. “Under the plain language of the statute, compensation is required for both physical takings of property interests and ‘damage’ to private property that results from a public improvement project.” Kirkpatrick II, 289 Kan. at 559.
The remainder of K.S.A. 26-513 contemplates that damage to private property resulting from a public improvement project may require compensation under Kansas law. Most notably, K.S.A. 26-513(d) provides a nonexclusive list of factors that should be taken into consideration when determining the compensation that is due to a landowner. The Kirkpatrick II court observed that among other items listed, the statute includes: “[l]oss of trees and shrubbery”; “[c]ost of new fences or loss of fences and the cost of replacing them with new fences of like quality”; “[d]amage to property abutting on a right-of-way due to change of grade”; “[ljoss of or damage to growing crops”; and “[c]ost of new drains or loss of drains and the cost of replacing them with drains of like quality.” K.S.A. 26-513(d)(7), (8), (10), (12), and (14). In these instances, the requirement for compensation arises not from a physical taking of the land but rather from damage to the property that “affects the value of the property remaining” after the government action. See K.S.A. 26-513(d)(7), (8), and (14); Kirkpatrick II, 289 Kan. at 560.
The Kirkpatrick II court further noted that the statutory recognition that compensation may be required for damage to property — in the absence of a physical taking — is consistent with decisions of the United States Supreme Court, which hold that compensation under the Fifth Amendment to the United States Constitution must be provided for damage to property that-is the “ ‘direct result’ of the governmental authority’s action and ‘consti tute[s] an actual, permanent invasion of the land.’ ” Kirkpatrick II, 289 Kan. at 560 (quoting Sanguinetti v. United States, 264 U.S. 146, 149, 68 L. Ed. 608, 44 S. Ct. 264 [1924]).
This court stated that previous Kansas cases making the conclusion that compensation is only required where a transfer of property rights has occurred or where property damage is needed to complete a public improvement project was not based on the language of the EDPA. Rather, the definition originated from this court’s case law predating the adoption of the eminent domain statutes. Kirkpatrick II, 289 Kan. at 561.
We found it significant that in 1963, the Kansas Legislature adopted the EDPA, including K.S.A. 26-513(a), requiring compensation for property taken or damaged (not merely taken and damaged), which illustrates the legislature’s intent to adopt a broader definition of eminent domain. Kirkpatrick II, 289 Kan. at 563. The previous Kansas appellate courts’ “disregard for the EDPA provisions,” stated the Kirpatrick II court, “has led to legal acrobatics in many of our recent inverse condemnation decisions.” Kirkpatrick II, 289 Kan. at 565.
Hence, this court denounced the previously utilized rationale of cases requiring that the damage be “necessary” to completion of a project and stated: “In order to give full effect to K.S.A. 26-513 and the other provisions of the EDPA, we disapprove of our prior case law that fails to take into account the statutory requirement that just compensation be provided for property damaged for public use.” (Emphasis added.) Kirkpatrick II, 289 Kan. at 568. Nevertheless, consequential or tangential damages are not compensa-ble. Kirkpatrick II clarified that in order for damage to real estate to be compensable under the EDPA, that “damage must be substantial and must be the planned or inevitable result of government action undertaken for public benefit.” Kirkpatrick II, 289 Kan. at 569.
The Kirkpatrick II court concluded that substantial evidence supported the district court’s finding that the damage to the homeowner’s property was the direct result of the City’s actions in constructing a roundabout adjacent to the property and the City was aware of the alteration of the groundwater flow but took no action to remedy the change. Reversing the Court of Appeals’ decision, this court held that because the substantial damage to the homeowner’s property was the inevitable result of the change in groundwater level, the damage was compensable in an inverse condemnation action. Kirkpatrick II, 289 Kan. at 570-71.
As a result of the Kirkpatrick II decision, the rationale relied on by the district court in this case is no longer valid. Despite that, the City argues the same result is justified because of the lack of evidence that the Project caused any damage. In making this argument, the City does not dispute, applying Kirkpatrick II, that die Fricks’ damage claims fit under the statutory language of K.S.A. 26-513. Indeed, in its nonexclusive list of factors to be considered, K.S.A. 26-513 includes “[djamage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land”; “[l]oss of or damage to growing crops”; and “[c]ost of new drains or loss of drains and the cost of replacing them with drains of like quality, to the extent that such loss affects the value of the property remaining.” K.S.A. 26-513(d)(10), (12), (14). We do note, however, that the factors “are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage[s].” K.S.A. 26-513(d). Thus, although the Fricks listed the two categories of property damage in separate counts, they should have been combined into one takings claim.
Nevertheless, as the City argues, the Fricks “did not provide a single piece of evidence substantiating their claim the contractors entered and damaged their property. In all likelihood, the Fricks have mistaken the public right-of-way as their property.” The closest the Fricks came is in their reply to the City’s motion for summary judgment, in which they presented additional statements of uncontroverted facts. In statement of fact No. 5, they stated, inter alia, that the City’s contractor “damaged the parking areas of the Plaintiffs Ben and LaVelle Frick’s property by turning vehicles around on their property without permission.” The statement also contained allegations that the contractor prevented access to the relocation site. To support the statements, the Fricks cited to the record as follows: “See Exhibit 15 Wilson Engineering maps from File 65 — WCEA File No. X2-41-014.” However, the referenced maps did not provide any evidence that there was any trespassing or damage to the property as a result. Rather, the maps illustrated the design plan. Hence, the statements are not supported by the summary judgment record as required by Rule 141 (2009 Kan. Ct. R. Annot. 225). On appeal, the Fricks do not cite to any other evidence in the record on appeal.
Similarly, the City contends that the Fricks failed to adequately substantiate their claim that the City, in redesigning the roads adjacent to the Fricks’ relocation site, caused flooding on the Fricks’ property. On the other hand, the City supported its motion for summary judgment with the affidavit of Timothy Miles, a professional civil engineer for Wilson & Company, Inc., the construction company hired by the City to design and engineer the improvements associated with the City’s Project. In his affidavit, Miles averred:
“4. . . . There were existing and ongoing drainage problems in this area prior to the initiation of the N. Ohio Overpass Project. The existing drainage problems were not the result of the N. Ohio Overpass Improvements. The project plans demonstrate this fact.
“5. . . . This area retains water until it reaches a certain depth, at which point it flows north through a drainage structure under Pacific Avenue to nearby drainage facilities.
“6. Based on the existing and new cross section elevations in the project plans, the existing ditch on the south side of Mr. Frick’s property is at the same (or lower) elevation in most places as it was before the project. . . . Therefore, these ditches had to have retained water prior to the project.
“7. The cross sections show that none of the new ditches south of Pacific Avenue inhibit water from leaving Plaintiffs’ field and entering the roadway ditch.... The new ditches either match the existing width or are wider than the existing ditches. Therefore, the new ditches have a greater retention capacity than the existing ditches. Any water ponding in Plaintiffs’ crops field is a direct result of the existing drainage problems on this property, not this project.
“8. The new pipe across Pacific Avenue . . . was designed to handle a 25-year storm and has a considerable higher capacity than the reinforced concrete box culvert it replaced. This new pipe has a 7.0 square foot opening compared to the 4.0 square foot opening of the existing structure.
“9. The drainage area that gets to this pipe is also smaller now as a result of other drainage changes along Pacific Court [sic]. Before this project, most of the drainage from the businesses east of Plaintiffs’ property to Ohio Street and south of Pacific Avenue drained back west to the reinforced concrete box culvert. Now, the east entrance of ADM milling is the bréale point. Everything east of this entrance drains to the detention pond instead of to this pipe.
“10. For the aforementioned reasons, the drainage conditions in front of and affecting Mr. Frick’s property can only be characterized as improved, as a result of the project.” (Emphasis added.)
A review of the record reveals that the Fricks replied to the City’s statements of fact that incorporated this affidavit by stating the facts were “controverted.” In addition, in their reply to the motion for summary judgment, the Fricks added several statements relating to the flooding. In all instances, the Fricks described retention of .water on the relocation site and stated that the City diverted storm water onto the property, made changes to the ground elevation, changes to “drainage ditch flow,” installed drainage culverts “with inadequate areas to receive the run off from the culverts,” and eliminated existing culverts. For support, the Fricks cited to Miles’ affidavit and the engineering maps of Miles’ employer, Wilson & Company, Inc. According to the Fricks, these maps depicted water flowing through the Fricks’ property to the drainage culvert in front of Lot 3 and showed holding ponds in the area where the Fricks’ replacement building was to be constructed. Contrary to these assertions, however, Miles explained in his affidavit that these project plans showed the drainage problems that existed prior to the Project. Apparently recognizing this, the Fricks also argued that the runoff water design did not flow as proposed by drawings and, instead, created “worse flooding after the construction of the [Project] at the end of Pacific Avenue than before the construction.” However, the Fricks did not support this statement with any evidence.
Once again, as we review the state of the summary judgment record, the City presented evidence that the Project improved the drainage, and the Fricks do not cite to any other portion of the record that supports their viewpoint. Once again, the Fricks have failed to provide Rule 141-compliant support for their assertions. Summary judgment was appropriate, therefore, although on different grounds than entered by the district court. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007) (district court’s decision may be upheld even though it relied on wrong ground).
ISSUE 3: Does the City’s alleged “intentional 'pattern of behavior” result in a compensable taking of the Fricks’ propertyP (Appellants’ Issue VIZ.)
The final issue presented by the Fricks is whether the City’s alleged “intentional pattern of behavior” results in a compensable taking of their relocation site. They contend that “if you combined all the actions alleged in the 6 counts [of the amended petition] there is an overall accumulative taking of property requiring compensation.” This “totality of the circumstances” or “cumulative error” type of approach fails in that we have not found support in the record for a taking on any one of the counts. Hence, there is nothing to accumulate. See State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007) (even one error is insufficient to support reversal under the cumulative effect rule).
Affirmed.
Davis, C.J. and Nuss, J., not participating.
Glenn D. Schiffner, District Judge, and Larson, S.J., assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, William Michael Gentry, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1993. The respondent’s license to practice law in the state of Kansas has been administratively suspended since October 13,2005, for failure to comply with the annual requirements to maintain his license.
On June 10, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 23,2009, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.15(b) (2009 Kan. Ct. R. Annot. 507) (safekeeping property); 8.1(b) (2009 Kan. Ct. R. Annot. 594) and Kansas Supreme Court Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On October 13, 2005, the Kansas Supreme Court suspended the Respondent’s license to practice law because the Respondent failed to comply with tire annual requirements to maintain his license. The Respondent’s license has not been reinstated to date.
“3. Randall Davis was involved in a car accident with Jodi Arrellin. At the time, Mr. Davis was not covered by insurance. Ms. Arrellin sued Mr. Davis in small claims court and obtained a judgment in the amount of $1,800.00, plus costs and interest. As a result, Mr. Davis’ driver’s license was suspended. Until the judgment is satisfied, Mr. Davis is not eligible for a Kansas driver’s license.
“4. Jeanette Day, Mr. Davis’ mother, contacted the Respondent to see if the Respondent could assist them in obtaining the reinstatement of Mr. Davis’ driver’s license.
“5. The Respondent agreed to assist them. The Respondent contacted Ms. Arrellin to determine whether she was willing to take an amount less than the judgment entered or whether she was willing to enter into a payment plan. Ms. Arrellin refused both propositions.
“6. Rased upon Ms. Arrellin’s position, the Respondent instructed Ms. Day to save her money and when she had some money saved, he would tiy again. The Respondent agreed to serve as a ‘bank’ for Ms. Day. From time to time, Ms. Day would forward a sum of money to the Respondent. The Respondent was to hold the money in trust so that once Ms. Day had accumulated enough money, the Respondent would again try to negotiate with Ms. Arrellin. Over time, Ms. Day accumulated $980.00 in the ‘bank.’
“7. Subsequently, Mr. Davis was charged with a probation violation in Smith-ville, Missouri. The Respondent agreed to assist Mr. Davis with the probation violation matter. The Respondent did not discuss the matter of a fee with Mr. Davis or Ms. Day.
“8. Later, Ms. Day attempted to contact the Respondent to see if he had any luck getting Ms. Arrellin to agree to accept a sum less than the judgment or to accept a payment plan. The Respondent did not return Ms. Day’s telephone calls. Eventually, Ms. Day became frustrated with the Respondent’s lack of communication and she demanded the return of the money in the ‘bank.’ [Footnote: It should be noted that the Respondent’s license to practice law in Kansas was suspended on October 13, 2005 and the Respondent would have been unable to continue to assist in negotiating the settlement of Mr. Davis’ case.]
“9. The Respondent told Ms. Day that he was busy right then but that he would get the money together and put it into the mail to Ms. Day. The Respondent never provided the funds that he was to be holding in trust for Ms. Day.
“10. At the hearing on this matter, the Respondent testified that he used the money Ms. Day paid to fund the representation he provided to Mr. Davis during the probation violation proceeding. The Respondent testified that while he believed he had earned the $980.00, he agreed to reimburse the Client Protection Fund.
“11. Ms. Day filed a complaint against the Respondent with the Disciplinary Administrator’s office. Additionally, Ms. Day filed a request with the Client Pro tection Fund for reimbursement for the $980.00 that the Respondent should have held in trust for her. The Client Protection Fund paid Ms. Day $980.00.
“12. Initially, the Disciplinary Administrator’s office attempted to handle the disciplinary complaint informally. The Disciplinary Administrator forwarded a letter to the Respondent requesting a response to the initial complaint. The Respondent failed to provide a response to the initial complaint.
“13. As a result, the Disciplinary Administrator’s office docketed the case for investigation. The complaint was forwarded to the Wyandotte County Ethics and Grievance Committee. H. Reed Walker was assigned to investigate tire case.
“14. On November 10, 2008, Mr. Walker wrote to the Respondent requesting a response to die initial complaint. The Respondent failed to provide a written response to the initial complaint or otherwise respond to Mr. Walker’s letter.
“15. On December 22, 2008, Mr. Walker again wrote to the Respondent requesting that the Respondent provide a written response to the initial complaint. The Respondent, again, failed to provide such a response.
“16. Recause the Respondent had not provided a written response to the initial complaint or otherwise responded, Mr. Walker called the Respondent. The Respondent assured Mr. Walker that he would provide a written response to the initial complaint by the end of the week. The Respondent never provided a written response to the initial complaint.
“17. On June 10, 2009, the Disciplinary Administrator filed a Formal Complaint in this case. The Respondent failed to file an Answer to the Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.15, KRPC 8.1(b), Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below.
“2. Lawyers must keep the property of their clients safe. See KRPC 1.15(b). In this case, the Respondent failed to properly safeguard Ms. Day’s money when he failed to deposit die $980.00 into his client trust account and maintain it in his client trust account until Ms. Davis requested distribution. The Respondent also violated KRPC 1.15(b) when he apparently converted Ms. Day’s money to his own use. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b).
“3. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority,...’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to die Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to forward a written response to the initial complaint he had been instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator and he had assured the attorney investigator that he would provide a response. Recause the Respondent knowingly failed to provide a written response to the initial complaint filed by Ms. Day as requested by the Disciplinary Administrator and the attorney investigator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“4. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel’ Kan. Sup. Ct. R. 211(b).
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint and by failing to file a written Answer to the Supplement to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury cáused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to properly safeguard [her] property. The Respondent also violated his duty to the legal profession to cooperate in disciplinary investigations.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Ms. Day. However, the Client Protection Fund abated Ms. Day’s injury.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. The Respondent failed to properly safeguard and apparently converted Ms. Day’s $980.00 to his own use. Conversion is a dishonest and selfish act.
“Bad Faith Obstmction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. By failing to provide a written response to the initial complaint or an Answer to the Formal Complaint the Respondent obstructed the disciplinary proceeding.
“Vulnerability of Victim. The Hearing Panel had the opportunity to observe Ms. Day’s testimony and demeanor. It is difficult to imagine a more vulnerable victim.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1993. At tire time the misconduct began, the Respondent had been practicing law for 12 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law.
“Indifference to Making Restitution. The Respondent had ample opportunity to refund the money he held in trust for Ms. Day. The Respondent failed to do so. To date, the Respondent has not reimbursed the Client Protection Fund.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined in Kansas or Missouri.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. At the hearing on this matter, the Respondent acknowledged his misconduct.
“Remorse. The Respondent expressed remorse at the hearing on the Formal Complaint.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Respondent did not object to the Disciplinary Administrator’s recommendation. The Respondent requested only that he not be disbarred.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for an indefinite period of time. The Hearing Panel further recommends that the Respondent pay the Client Protection Fund $980.00 within 60 days of the date of this report.
“Costs are assessed against the Respondent in an amount to be certified by the office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
Conclusion and Discipline
It Is Therefore Ordered that William Michael Gentry be indefinitely suspended from the practice of law in the state of Kansas, effective upon the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Davis, C.J., not participating.
John E. Sanders, District Judge, assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Melvin R. Her-rington, of Gilchrist, Texas, an attorney admitted to the practice of law in Kansas in 2000.
On September 5, 2008, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The complaint and notice of hearing were mailed to respondent by certified mail dated September 5, 2008, at the last address listed with the Clerk of the Appellate Courts; the notice was signed for by Melvin Herrington on September 8, 2008. An amended notice of hearing was mailed to respondent on November 19, 2008. On April 16, 2009, the respondent filed an answer to the formal complaint. On April 23, 2009, a hearing was held before a panel of the Kansas Roard for Discipline of Attorneys. The disciplinary administrator, Stanton A. Hazlett, appeared in person and argued the case; the respondent did not appear.
The hearing panel determined that the respondent violated KRPC 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); KRPC 1.4 (2009 Kan. Ct. R. Annot. 443) (communication); 1.15 (2009 Kan. Ct. R. Annot. 507) (safekeeping property); KRPC 1.16 (2009 Kan. Ct. R. Annot. 522) (termination of representation); KRPC 3.2 (2009 Kan. Ct. R. Annot. 539) (expediting litigation); and KRPC 8.4 (2009 Kan. Ct. R. Annot. 602) (conduct adversely reflecting on lawyer s fitness to practice law). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
"DA10245
“2. The Respondent represented Christopher S. Nelson in a criminal case pending before the Honorable Richard D. Anderson, District Judge of the Third Judicial District.
“3. On June 14, 2007, and on June 21, 2007, the Respondent failed to appear in court for scheduled probation violation hearings in Mr. Nelson’s case. As a result, on June 21, 2007, Judge Anderson filed a complaint against the Respondent.
“4. On July 19, 2007, the Respondent responded to Judge Anderson’s complaint. The Respondent admitted that he failed to appear in court twice for Mr. Nelson’s probation violation hearings.
“DA10357
“5. The Respondent represented Albert L. Conley, Jr. in a criminal case pending before the Honorable Evelyn Z. Wilson, District Judge of the Third Judicial District.
“6. Mr. Conley entered a plea of guilty to a felony charge of driving under the influence of alcohol. Thereafter, the Court scheduled Mr. Conley’s sentencing for August 22, 2007.
“7. On August 22, 2007, the prosecutor and Mr. Conley appeared in court for Mr. Conley’s sentencing. Additionally, Mr. Conley’s wife flew from California to Kansas to attend the sentencing hearing. The Respondent failed to appear in court. The Respondent left a voice mail message for the judge stating he was sick and could not attend the sentencing hearing. The Court continued Mr. Conley’s sentencing hearing until August 29, 2007, and sent the Respondent a notice of the date and time of the rescheduled sentencing hearing.
“8. On August 29, 2007, the prosecutor and Mr. Conley again appeared for a sentencing hearing. Mr. Conley’s wife flew from California to Kansas for a second time for her husband’s sentencing hearing. Again, the Respondent failed to appear at the sentencing hearing. The Respondent did not call or otherwise communicate with anyone that he would not attend. The Court continued Mr. Conley’s sentencing hearing to October 19, 2007. Again, the Court notified the Respondent of the new date for the sentencing hearing.
“9. On September 8, 2007, Judge Wilson sent the Respondent a letter asking him to come to her chambers as soon as possible. The Respondent did not contact Judge Wilson in response to the letter.
“10. On October 19, 2007, Judge Wilson called Mr. Conley’s case for sentencing for the third time. Both the prosecutor and Mr. Conley were present for the sentencing hearing. Again, Mr. Conley’s wife flew from California to Kansas for the sentencing hearing. Again, the Respondent failed to appear to represent Mr. Conley in his sentencing hearing. The Respondent did not notify the court, the prosecutor, or his client that he would not be at the sentencing hearing.
“11. In court, Mr. Conley informed Judge Wilson that the Respondent had not returned his telephone calls.
“12. Judge Wilson appointed an attorney from the public defender’s office to represent Mr. Conley during sentencing and the sentencing hearing was held that day.
“13. On October 25, 2007, Judge Wilson filed a complaint with the Disciplinary Administrator’s office regarding the Respondent’s failure to appear for sentencing of Mr. Conley on three occasions.
“14. On November 26, 2007, the Respondent filed a written response to Judge Wilson’s complaint. The Respondent did not contest the allegations made by Judge Wilson.
“DA10407
“Representation of Tyrone Allen
“15. The Respondent represented Tyrone Allen before the Topeka Municipal Court in two separate cases. The Respondent stipulated to the City’s evidence and Mr. Allen was found guilty as charged. The Respondent then appealed Mr. Allen’s convictions to the Shawnee County District Court.
“16. The Shawnee County District Court set the trial de novo for November 29, 2007. Prior to trial, however, the Respondent and the prosecutor entered into plea negotiations and reached a plea agreement. Mr. Allen was to enter his plea on November 29, 2007.
“17. On November 29, 2007, the prosecutor and Mr. Allen appeared for a hearing to enter a plea. The Respondent, however, did not appear in court at that time. Mr. Allen told the prosecutor that he had not heard from the Respondent. The prosecutor attempted to contact the Respondent but to no avail.
“18. The Court rescheduled the plea hearing for December 4, 2007. Again, die prosecutor and Mr. Allen appeared, but tire Respondent did not. Mr. Allen told the court that he had attempted to contact the Respondent on a number of occasions, but the Respondent never returned his telephone call.
“19. The Court rescheduled the plea hearing a third time for January 7,2008. The prosecutor and Mr. Allen appeared for the plea hearing on January 7, 2008. The Respondent failed to appear for the plea hearing. After this third attempt at a plea hearing, the court appointed new counsel for Mr. Allen.
“20. On January 11, 2008, the prosecutor, John Knoll wrote to the Disciplinary Administrator complaining about the Respondent’s failures to appear in court.
“Representation of Sandra K Silver
“21. The Respondent represented Sandra K. Silver before the Topeka Mu nicipal Court on a charge of driving under the influence of alcohol. The Honorable Steven R. Ebberts presided over the case.
“22. Ms. Silver was scheduled for an arraignment hearing on January 11,2008. Ms. Silver appeared for the arraignment hearing, however, the Respondent did not. On that date, Ms. Silver informed Judge Ebberts that she had made repeated attempts to communicate with the Respondent but that he failed to reply.
“23. After the proceeding on January 11, 2008, Judge Ebberts attempted to contact the Respondent by telephone. The Respondent did not return telephone calls to Judge Ebberts.
“24. On January 15, 2008, Judge Ebberts wrote to the Respondent. Judge Ebberts instructed the Respondent to respond to him in writing regarding the Respondent’s failures to appear in court. The Respondent eventually responded to Judge Ebberts’ inquiry on March 6, 2008.
“25. A copy of Judge Ebberts’ letter to the Respondent was forwarded to the Disciplinary Administrator’s office. On February 11, 2008, the Respondent wrote to the Disciplinary Administrator’s office. In the letter, the Respondent stated that he did not contest the allegations contained in Judge Ebberts’ January 11, 2008, letter nor did he contest the allegations contained in Mr. Knoll's January 11,2008, letter to the Disciplinary Administrator.
“Representation of Kenneth L. Womack
“26. The Respondent represented Kenneth L. Womack before the Topeka Municipal Court for various traffic and misdemeanor charges. After retaining the Respondent and paying him approximately $650.00, Mr. Womack never heard from the Respondent. The Respondent failed to appear in court on behalf of Mr. Womack on a number of occasions.
"DA10510
“27. In May, 2006, Marc Garcia was arrested in Douglas County, Kansas, for driving under the influence of alcohol. Mr. Garcia retained the Respondent to represent him in the administrative and the criminal proceedings related to his arrest.
“28. Mr. Garcia paid the Respondent $1,500.00. According to the handwritten receipt that the Respondent provided Mr. Garcia, the $1,500.00 was to cover representation “up thru [sic] trial.” If Mr. Garcia’s case were to go to jury trial, Mr. Garcia would have to pay the Respondent an additional $1,000.00.
“29. In November, 2006, the Respondent represented Mr. Garcia before tire Kansas Department of Motor Vehicles in a driver’s license suspension hearing.
“30. Thereafter, in April, 2008, Mr. Garcia received notice of criminal proceedings in Douglas County, Kansas. After he received notice that the Douglas County District Attorney’s office was proceeding with criminal charges, Mr. Garcia attempted to reach the Respondent by telephone. The Respondent’s office telephone and mobile telephone were disconnected. Mr. Garcia went to the Respondent’s office and discovered that the Respondent had moved out of his office.
“31. The Respondent failed to provide Mr. Garcia with notice that he had either moved his office or quit practicing law. The Respondent failed to return any unearned fees to Mr. Garcia.
“32. Mr. Garcia was required to hire new counsel. Mr. Garcia paid $3,500.00 to his new attorney to represent him in the criminal proceeding.
“33. On April 30, 2008, Mr. Garcia filed a complaint with the Disciplinary Administrator’s office. On June 28, 2008, the Respondent responded in writing to Mr. Garcia’s initial complaint.
“Disciplinary Proceedings
“34. On September 5, 2008, the Disciplinary Administrator filed a Formal Complaint. The Respondent failed to file a timely Answer to the Formal Complaint.
“35. A hearing on the Formal Complaint was scheduled for October 1, 2008. However, prior to the hearing, the Respondent’s home in Texas was destroyed by a hurricane. As a result, the Respondent asked that the hearing be postponed to allow him time to address his living situation.
“36. The Hearing Panel granted the Respondent’s request for a continuance and rescheduled the hearing for April 23, 2009.
“37. Prior to the scheduled hearing, on April 13, 2009, tire Respondent wrote to the Disciplinary Administrator and stated:
‘Enclosed please find my response to the above referenced complaints. I understand that my formal hearing is set for April, 23, 2009, at 9:30 A.M. I further understand that I have a right to be present at such hearing. However due to requirements related to my current employment I will not be able to attend the hearing. I am currently a teacher at Hamshire-Fannptt High School, in Hamshire, Texas where I teach 9th grade World Geography as well as being the head soccer coach for the boy’s high school team. The requirements for my job at this time do not allow me to take time off to attend the hearing. I want to apologize for any inconvenience this may cause you or the Court.
‘As you are aware I am not going to contest any of the charges filed within the four (4) complaints. I have provided formal written responses to each of the four (4) complaints currently before the Court, copies of which are contained in your “Disciplinary Administrator’s Proposed Witness and Exhibit List.” I would request that my formal responses contained in your “Disciplinary Administrator’s Proposed Witness and Exhibit List” be allowed to be admitted as my formal testimony as to the charges pending as well as for the purpose of mitigating circumstances. I would further request that whatever correspondence your office received from Dr. Robert J. Blattener [sic], Ph.D., whether it be confidential or not, concerning my outpatient therapy be admitted as mitigating circumstances.
T want you as well as tire Court to know that I am embarrassed about my behavior which brought about the complaints. I have the utmost respect for the law and I am privileged and honored to be a member of the Kansas State Bar. While I am not currently practicing law I do not want to lose the ability to practice law in the future. I request that whatever recommendation you make to the Court not be one in which I would lose my license to practice law. I operated my law office in Topeka, working as a sole practitioner for approximately eight (8) +/— years almost exclusively in the field of criminal defense. During that time I defended thousands of clients and I never once had any complaints concerning my representation nor my ability to professionally practice law.’
“CONCLUSIONS OF LAW
“1. In addition to the rule violations alleged in the Formal Complaint, the Hearing Panel has considered the additional violation of KRPC 1.16. It is appropriate to consider violations not specifically included in the Formal Complaint under certain circumstances. The law in this regard was set forth by the Supreme Court in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi) requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Buffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L.Ed.2d 117, reh. denied 391 U.S. 961, 88 S. Ct. 1833, 20 L.Ed.2d 874 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Buffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided-in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses. . . .
‘Subsequent to the Buffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Buffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rales allegedly violated..., nor is it required to plead specific allegations of misconduct.... What is required was simply stated therein:
“ “We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.’ ” 235 Kan. at 458-59.
Thus the consideration of additional violations is allowed only when the Formal Complaint alleges facts that would support findings of violations of additional rules. In this case, the Formal Complaint includes the following information:
‘18. . .. Mr. Garcia made numerous attempts to contact the respondent about his case and the respondent failed to return the phone calls. Eventually, the respondent’s office phone and cell phone were disconnected.
T9. The respondent abandoned Mr. Garcia as a client. . . .’
The Hearing Panel concludes that the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 1.16 with regard to Mr. Garcia.
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only with proper service of process. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part that:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the original Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Additionally, the Respondent acknowledged notice of the second hearing in his April 13, 2009, letter. The Hearing Panel concludes that the Respondent was afforded service of process that the Kansas Supreme Court Rules require.
“3. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 3.2, and KRPC 8.4, as detailed below.
“4. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients in this case. Specifically, the Respondent failed to provide diligent representation to Mr. Conley, Mr. Allen, Ms. Silver, Mr. Womack, and Mr. Garcia. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“5. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ The Respondent violated KRPC 1.4(a) when he failed to keep his clients reasonably informed regarding the status of their representations. The Respondent failed to adequately communicate with Mr. Conley, Mr. Allen, Ms. Silver, Mr. Womack, and Mr. Garcia. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“6. Lawyers must deal properly with the property of their clients. Specifically, KRPC 1.15(b) provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
The Respondent violated KRPC 1.15(b) when he failed to refund the unearned fees paid by Mr. Garcia.
“7. KRPC 1.16 requires lawyers to take certain steps to protect a client’s legal interests after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client^ allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers reláting to the client to the extent permitted by other law.’
The Respondent violated KRPC 1.16(d) when he abandoned Mr. Garcia without any notice.
“8. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The Respondent failed to make any efforts to expedite the litigation of Mr. Conley, Mr. Allen, Ms. Silver, Mr. Womack, and Mr. Garcia and violated KRPC 3.2.
“9. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he repeatedly failed to appear in court for scheduled hearings on behalf of Mr. Nelson, Mr. Conley, Mr. Allen, Ms. Silver, Mr. Womack, and Mr. Garcia.
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide diligent representation, to provide adequate communication, and to safeguard property. Additionally, the Respondent violated his duty to the legal profession
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his clients and to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct he engaged in similar misconduct by failing to appear in court in behalf of several clients.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 3.2, and KRPC 8.4. Thus, the Hearing Panel concludes that the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to file a timely Answer to the Formal Complaint and appear at the hearing. However, the Respondent failed to do so. As a result, the Hearing Panel concludes that the Respondent engaged in a bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary process.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. It does not appear that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. According to the letters from Dr. Blattner, the Respondent suffers from an adjustment disorder with a depressed mood. It appears that the Respondent’s emotional problems may have contributed to the violations.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be suspended for an indefinite period of time. Ry letter, the Respondent recommended that he be allowed to practice law in the future.
Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for an indefinite period of time. Further, the Hearing Panel recommends that the Court require that the Respondent make restitution to Mrs. Albert L. Conley for the two unnecessary trips from California to Kansas and to the Client Protection Fund in the amount of $1,500.00 for the amount paid out to Mr. Garcia.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
The Disciplinary Administrator recommends that this court adopt the recommendation of the hearing panel that respondent be indefinitely suspended from the practice of law in this state. We note that the respondent did not appear for hearing before this court or offer an explanation for his absence, although a copy of the hearing notification was mailed to him on three different dates in accordance with our rules. The first notice was mailed on October 13, 2009; it was returned, marked “unclaimed.” The second notice was mailed November 4,2009; it was returned, marked “forward time exp.” The third notice was mailed November 6, 2009; it also was returned, marked “forward time exp.” Apparently his teaching in Texas was again the reason he did not appear for hearing before this court. However, we note that, while respondent responded to the formal complaint and also filed notice that he would file no exceptions, he made no contact with tins court regarding appearing before this court, and the rule requiring appearance does not allow for any exceptions. The respondent was properly notified of this proceeding, and this court has jurisdiction to proceed.
The respondent filed no exceptions to the panel’s final hearing report. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). Upon our review of the entire record we conclude that the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We therefore adopt those findings and conclusions, which establish the misconduct of respondent by clear and convincing evidence. See In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (citing In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]); Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). With respect to the discipline to be imposed, the panel’s recommendation is advisoiy only and shall not prevent the court from imposing a different discipline. In re Cline, 289 Kan. 834, 846, 217 P.3d 455 (2009); Supreme Court Rule 212(f).
However, we determine that the recommendations of the Disciplinary Administrator and the panel are appropriate. We also agree with the panel’s recommendations regarding restitution and further conclude that, consistent with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and Rule 219 (2009 Kan. Ct. R. Annot. 376), a hearing be held before any reinstatement of the respondent.
Conclusion and Discipline
It Is Therefore Ordered that Melvin R. Herrington be indefinitely suspended from the practice of law in the state of Kansas, effective tire date of this opinion in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Rule 218 and in the event respondent would seek reinstatement, he shall comply with Rule 219.
It Is Further Ordered that respondent make restitution consistent with the recommendations of the panel.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Lockett, J.:
A community college appeals the district court’s ruling on summary judgment that (1) out-district tuition is not chargeable to a county for classes taught at a military base; and (2) the defenses of estoppel and waiver by payment, laches, and unjust enrichment were inapplicable to the county’s counterclaim for reimbursement. The county cross-appeals the district court’s ruling that (1) the statutory penalty in K.S.A. 19-232 does not apply to charges it previously paid; (2) the county is not entitled to prejudgment interest; and (3) the community college is entitled to judgment for out-district tuition due for classes not taught on a military base. This case was transferred to this court pursuant to K.S.A. 20-3018(c).
Since 1974, Butler County Community College (BCCC) has contracted with and taught community college courses at McConnell Air Force Base (McConnell), a federal enclave situated in Sedgwick County. BCCC submitted requests for approval of out-district instruction to the State Board of Education (State Board). After obtaining the State Board’s approval, BCCC charged and collected out-district tuition from counties whose residents took BCCC’s courses. See K.S.A. 71-301 and K.S.A. 71-607. From 1974 until 1992, BCCC billed and received payment from the Sedgwick County Board of County Commissioners (Sedgwick County) for out-district tuition for civilian Sedgwick county residents attending BCCC’s classes, wherever located.
In the spring of 1992, Sedgwick County refused to pay the out-district tuition billings sent by BCCC for the Fall-Mini 1991 se mester and the Spring 1992 semester. In April 1992, BCCC filed suit against Sedgwick County to collect the out-district tuition due from Sedgwick County. Sedgwick County denied it was obligated to pay and counterclaimed for a credit and offset for tuition BCCC had previously improperly collected. During tire pendency of the action, Sedgwick County continued to refuse to pay out-district tuition to BCCC. Accordingly, as semesters or terms passed, BCCC filed amended petitions seeking additional payment of out-district tuition from Sedgwick County.
From 1974 through the fall of 1991, the out-district tuition billings sent to Sedgwick County combined the McConnell and non-McConnell classes into a single statement without indicating that McConnell classes were included in the bill or tire location where the classes were taught. The only detail furnished with the summary page containing the amount due was an alphabetical listing of the Sedgwick County students, the identification number for each student, the address of each student, and credit hours taken by each student. Sedgwick County paid the tuition bills without knowledge that McConnell charges were included. Because of the billing procedure for out-district tuition, it was during pretrial discovery that Sedgwick County became aware that BCCC had been teaching courses at McConnell since 1974 and. had charged Sedgwick County out-district tuition for those courses.
The total amount sought by BCCC in its lawsuit was $1,695,225 for the Fall-Mini 1991 through Spring-Mini 1993 semesters. Of this amount, $436,145 was for McConnell classes and $1,259,080 was for non-McConnell classes.
In response to BCCC’s motion for summary judgment and Sedgwick County’s motion for partial summary judgment, the district court held that BCCC was not entitled to collect out-district tuition for Sedgwick County civilian residents attending classes at McConnell. Thereafter, Sedgwick County amended its counterclaim to obtain reimbursement for BCCC’s wrongful collection of out-district tuition. In the amended counterclaim, Sedgwick County claimed that BCCC was not entitled to out-district tuition for classes taught at McConnell because BCCC had failed to ob tain permission to teach the classes from Wichita State University (WSU). It requested an offset against whatever sums BCCC might recover for Sedgwick County’s nonpayment of out-district tuition after the fall 1991 semester. BCCC answered defendant’s amended counterclaim raising numerous affirmative defenses, including statute of limitations, waiver, laches, equitable estoppel, and voluntary payment.
Prior to trial, the parties stipulated to the amount of out-district tuition in dispute for civilian Sedgwick County residents educated at McConnell. Sedgwick County then dismissed all of its counterclaims except repayment of McConnell out-district tuition and payments. After a one-day trial, the court found that Sedgwick County was not aware the tuition bills submitted by BCCC included out of district charges for McConnell classes and was entitled to reimbursement of $2,858,201 for the McConnell charges previously paid to BCCC. The court also found that: (1) the unpaid non-McConnell charges from Fall-Mini 1991 through Spring-Mini 1993 totalling $1,259,080 were due and owing to BCCC and (2) Sedgwick County was not liable for the unpaid McConnell charges totalling $436,145. The court found each of BCCC’s equitable defenses were inapplicable to a governmental entity. The district court granted Sedgwick County a judgment of $1,599,120. The district court refused to impose the 100% penalty of K.S.A. 19-232 or to assess prejudgment interest against BCCC.
BCCC appeals the district court’s findings that out-district tuition is not properly chargeable to Sedgwick County for classes taught at McConnell and that equitable defenses are inapplicable to governmental entities. Sedgwick County cross-appeals (1) the district court’s ruling that K.S.A. 19-232 does not apply to Sedgwick County’s recovery of the McConnell charges previously paid; (2) the denial of prejudgment interest; and (3) the judgment fo;r out-district tuition for the non-McConnell classes.
Standard of Review
The facts are not in dispute. We are determining the statutory right of a community college to collect out-district tuition. This court’s review of that question of law presented is de novo. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Each argument relevant to that issue is addressed separately.
Federal Supremacy
Sedgwick County argued that because the State ceded the land to the United States in 1953, out-district tuition statutes enacted by the State in 1965 cannot provide BCCC with a basis for out-district tuition for classes taught at McConnell. BCCC contended that an analysis of federal supremacy was unnecessary because application of federal law is not required and the act giving rise to the lawsuit, Sedgwick County’s failure to pay out-district tuition, did not occur on the federal enclave. The district court determined that the federal supremacy doctrine did not apply under these circumstances. Sedgwick County raises the issue of federal supremacy on appeal.
Under the federal supremacy doctrine, where there exists a conflict between federal and state law, federal supremacy requires the application of federal law rather than state law. With respect to federal enclaves situated within the boundaries of the state of Kansas, only federal law and such Kansas law (not in conflict with federal law) in effect at the time of the establishment of the federal enclave is applicable to the activities and operation within such federal enclaves. An exception to the rule exists if subsequently enacted Kansas law is specifically adopted or made applicable by an act of Congress. Orlovetz v. Day & Zimmerman, Inc., 18 Kan. App. 2d 142, Syl., 848 P.2d 463 (1993).
In October 1953, the State of Kansas ceded to the United States the territory comprising McConnell. The United States accepted exclusive jurisdiction over the McConnell property, and it has remained a federal enclave since that time. The Kansas statutes regarding the payment of out-district tuition were first enacted in 1965. Sedgwick County asserts that these Kansas statutes have no application to classes taught at McConnell because of the “firmly established constitutional principle that activity on a federal enclave is governed by the laws of the United States, and not by the laws of the state in which such enclave is located unless those laws were in effect at the time the territory was ceded to the federal government.”
The collection of out-district tuition from Sedgwick County residents taught on a federal military reservation does not impinge upon the acts and operations of the United States government. BCCC’s right of action arose when Sedgwick County refused to pay out-district billings approved by the State Board; therefore, Kansas law, not federal law, must be applied in determining the claims of each party. The district court’s conclusion that under the circumstances of this case no conflict between federal and state law exists is correct.
Express Statutory Authorization
Sedgwick County asserts that authorization for community college courses to be taught on a federal enclave is statutory. It points out that K.S.A. 71-205 authorizes community colleges to offer courses at Fort Leavenworth military reservation and notes there is no specific statutory authority for a community college to offer classes at McConnell. Sedgwick County concludes that if there is no statutory authority for BCCC to teach classes on a federal enclave other than Fort Leavenworth, it cannot collect out-district tuition for classes taught at McConnell.
BCCC responds that the statutory authority for community colleges to offer off-campus instruction at Fort Leavenworth was enacted in 1968, prior to the enactment of K.S.A. 71-607(a), K.S.A. 71-609(a), and K.S.A. 71-610, which authorize any community college to teach courses outside its own community college district. BCCC maintains that its offering classes at McConnell is within the broad statutory grant of power set forth in K.S.A. 71-201(b)(3) (authority to determine the educational program of its college subject to prior approval of the State Board); 71-201(b)(7) (authority to enter into contracts); and 71-201(b)(14) (authority to exercise all other powers not inconsistent with the provisions of law or with the rules and regulations of the State Board).
At the time McConnell became a federal enclave in 1953, there was no legislation relating to out-district tuition, nor had the leg islature established the community colleges. We note that in 1965 the board of trustees of a community junior college had the power to sue and be sued and enter into contracts. K.S.A. 71-201(2) and (7). The legislature provided for persons who are in active military service of the United States and their dependents to be admitted to a community college. K.S.A. 71-302(b)(l). The board of trustees of a community college is allowed to charge tuition to each student who resides within a federal military reservation. K.S.A. 71-301(a)(3).
Since 1974, BCCC has had a contract with McConnell to teach classes within the federal enclave. Under the contract, civilians (non-military personnel or their dependents) could participate in the courses on a space-available basis. Each contract between BCCC and McConnell has been submitted to and approved by the State Board. We conclude that BCCC has statutory authority and a valid contract to teach classes on a federal military reservation.
Out-District Tuition
Does BCCC have statutory authority to collect out-district tuition for Sedgwick County civilians who attend classes taught off the main campus of the community college on a federal military base, out of the community college’s taxing district, and in Sedgwick County?
In his memorandum decision, the district judge found that BCCC had offered classes at McConnell without soliciting or obtaining approval for the classes from Wichita State University (WSU). The judge concluded because BCCC failed to obtain approval from WSU, it was not entitled to collect out-district tuition from Sedgwick County for its residents attending the classes at McConnell. As authority for the decision, the judge cited the State Plan for fiscal years 1990-1991 and K.S.A. 71-609(b). A review of the constitutional and statutory provisions of the law, the purpose of the State Plan, and the history of community colleges is warranted to obtain a basic understanding of this action.
Under the Kansas Constitution, the legislature is to provide for intellectual, educational, vocational, and scientific improvement by establishing and maintaining public schools, educational institutions and related matters. The legislature is required to make suitable provisions for financing the educational interests of the state. Kan. Const, art. 6, § 1 and § 6(b).
Over 60 years ago, acting under authority of these constitutional provisions, the Kansas Legislature authorized the establishment of junior colleges having a two-year course of post-high school study. See R.S. 1923, 72-3301 et seq. “Junior colleges” and “community junior colleges” became “community colleges” pursuant to a statute enacted in 1980. K.S.A. 71-120. The board of trustees of a community college has the power to sue and be sued, and to enter into contracts. K.S.A. 71-201(b)(2) and (7). These community colleges generally have as a tax base a taxing district consisting of one county or less, and the board of trustees of each community college is authorized to levy a tax on the taxable tangible property of the community college district. K.S.A. 71-204. In order to provide additional financial assistance to the community colleges, the legislature authorized each community college, under certain circumstances, to charge and collect in-state tuition (which includes persons who are in active military service of the United States, their spouses and dependents), out-of-state and foreign student tuition, and out-district tuition for each student attending the college whose residence is outside the community college district. Out-district tuition is paid by the board of county commissioners of the county of residence of the students who live outside of the community college district. K.S.A. 71-301. See State ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, 676 P.2d 134 (1984).
State Plan
The district judge found that BCCC had failed to comply with the State Plan for Community Colleges (State Plan), K.S.A. 71-1001 et seq., as one basis for granting partial summary judgment to Sedgwick County. The only State Plan included in the record is a portion of the State Plan for Fiscal Years 1990-1991, which states in part:
“4. Instructional activities will not be approved in counties in which a Regents’ university or a municipal university are located, unless:
(a) The community college has official written permission granted by the appropriate administrator of the Regents’ institution in question.
(b) The community college has a valid contract with a governmental agency for the provision of educational services in the county in question, and a copy of such contract is on file with the director of the Community Colleges Section of the State Department of Education.”
The language in 4(a) and (b) is not connected by “and” or by “or.”
Sedgwick County argued that the State Plan for fiscal years 1990-1991 provides two requirements that must be met before instructional activities based on a contract with a federal agency can be approved for the collection of out-district tuition in a county in which a regents university or a municipal university is located. It claims that a liberal construction of statutes in order to effectuate their purpose is the established policy of this court. The function of liberal construction is called into use where there is ambiguity in the language of the statute or, in other words, where there are one or more interpretations which may fairly be made. State ex rel. Stephan v. Martin, 230 Kan. 747, 752, 641 P.2d 1011 (1982); Russell v. Cogswell, 151 Kan. 793, 795, 101 P.2d 361 (1940).
Sedgwick County concludes that, reading the provisions of the State Plan in the context of K.S.A. 71-1002, it appears that the purpose of the restriction is to control unnecessary duplication and expense which would result from allowing tax-supported community colleges and tax-supported regents institutions to offer the same courses in the same county. The district judge found Sedgwick County’s analysis of the State Plan to be correct.
BCCC argues that the State Plan for fiscal years 1990-1991 provides two alternative methods by which instructional activities can be approved in a county in which a regents university or a municipal university is located. BCCC asserts that Kansas has long recognized the rule of statutory construction requiring a presumption that the legislature intended a statute to be given a reasonable construction so as to avoid unreasonable and absurd results. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992); State v. Rowe, 18 Kan. App. 2d 572, 574, 856 P.2d 1340, rev. denied 253 Kan. 863 (1993). BCCC concludes that Sedgwick County’s interpretation would require any community college desiring to offer courses in Ellis, Riley, Douglas, Lyon, Sedgwick, Crawford, or Saline Counties not only to have official written permission granted by the chief executive officer of each regents institution in those counties, but also to have a valid contract with a governmental agency for the provision of educational services on the federal enclave in such county. This would put the community colleges in the untenable position of seeking out some governmental agency in the county to rubber-stamp its provision of courses there, even though the regents institution president had already expressly approved them. It asserts such an interpretation makes no sense. BCCC contends that it had a valid contract to teach classes with a governmental agency, i.e., the United States Air Force. BCCC notes that the contract had been reviewed and approved by the Kansas State Department of Education for the credit hours Sedgwick County was billed; therefore, it had complied with 4(b) of the State Plan.
To answer this issue, it is necessary to understand the puipose of the State Plan. The State Plan is a plan adopted for community colleges required by law. From time to time the plan may be amended by the State Board upon recommendation of the advisory council. The State Plan takes into account the institutions and facilities within the state, both public and private, to which the State or any of its subdivisions may be entitled to send students for education; present and projected needs of the State for expansion or alteration of existing institutions and for additional institutions; cultural, social, economic, and school attendance practices; and the need to provide at least two years of post high school education within reasonable commuting distance of all high school graduates in the state. K.S.A. 71-1002. The plan may include other matters listed in the Community College Act. K.S.A. 71-701(e); K.S.A. 71-1001.
The State Plan divides the state into areas; sets standards, criteria, and policies governing the approval, establishment, operation, development, and accreditation of community colleges; makes recommendations to the legislature for the future development of communiiy colleges; and is developed to provide for the offering of courses in the community colleges. K.S.A. 71-1003. See K.S.A. 71-701(e).
Interpretation of the State Plan is a question of law reviewable de novo. The function of the court is to give the State Plan such effect as is consistent with the intent of the legislature. Such intent may be determined from a general consideration of the entire act. McGranahan v. McGough, 249 Kan. 328, 334, 820 P.2d 403 (1991). The rule that reasonable interpretations of statutes and regulations are to be favored over unreasonable interpretations also applies to interpretation of the language in the State Plan.
The State Plan for fiscal years 1990-1991 must be read in conjunction with the state statutes existing during the term of the plan. Under the 1990-1991 State Plan diere are two methods for a community college to teach classes and courses in Sedgwick County. Section 4(a) allows instructional activities in a county in which a regents university or a municipal university is located if approved by the appropriate administrator of the university. As to 4(b), we note that the board of trustees of a community college has the power to sue and be sued and enter into contracts. K.S.A. 71-201(b)(2) and (7). Persons who are in active military service of the United States and their dependents are to be admitted to a community college. K.S.A. 71-302(b)(l). Section 4(b) of the State Plan is a method of providing instructional activities based on the statutory authority of a community college to enter into a contract to teach classes and courses for the governmental authority.
We disagree with Sedgwick County’s analysis of the purpose of the State Plan. The State Plan sets out the educational needs of the state and the goals that are to be accomplished by the community colleges. K.S.A. 71-1001 et seq. How those goals are to be funded are not included in K.S.A. 71-1001 et seq. but are set out in other statutes.
Community College Funding
BCCC claims that the district court erred in denying out-district tuition by relying on K.S.A. 71-609(b). It points out that 71-609(b) was not enacted until July 1, 1992, and concludes that WSU’s approval was not required to collect out-district tuition prior to 1992.
To assist in funding, each community college is entitled to receive out-district state aid payments. The board of trustees, in accordance with rules and regulations of the State Board, determines an amount of out-district tuition to be charged for each out-district student attending the community college. From reports and information provided by each community college, and additional audits and investigations conducted by the State Department of Education, the State Board determines the amount of out-district tuition each community college is entitled to bill to counties each year. K.S.A. 71-607(a).
The board of county commissioners of any county charged with payment of out-district tuition is required to levy a tax on all of the taxable property of the county sufficient to pay all out-district tuition charges. The proceeds are deposited in a special fund for payment of out-district tuition. Upon receiving a statement of charges for out-district tuition, the board of county commissioners is required to promptly pay the out-district tuition from the special fund. If there is insufficient or no money in the special fund, out-district tuition is to be paid from the county general fund or from the proceeds of the sale of no-fund warrants issued for the purpose of the payment of out-district tuition. K.S.A. 71-301(b).
Prior to July 1, 1992, out-district tuition could not be charged for any student attending a community college whose residence outside the community college district is in another community college district. K.S.A. 71-304. In addition, out-district state aid entitlement could not be based upon credit hours in any subject or course, the principal part of which was taught at a location outside of the county of the main campus of the community college, unless the location of such subject or course was specifically authorized by the State Board. K.S.A. 71-609(a). Thus, prior to 1992, BCCC was not required by statute to obtain WSU’s approval to charge for out-district tuition for Sedgwick County residents attending BCCC in Butler County or for Sedgwick County residents attending courses approved by the State Board outside of Butler County.
Subsequent to July 1, 1992, in addition to obtaining specific authorization from the State Board, no out-district tuition could be based upon or charged for credit hours in any subject or course which is taught in a county in which the main campus of a state educational institution is located, unless the teaching of such subject or course is specifically authorized by the chief executive officer of the state educational institution or by a designee of the chief executive officer. K.S.A. 71-609(b).
We agree with BCCC’s analysis. The district judge erred in determining that BCCC was required to obtain specific authorization from the chief executive officer of WSU for classes BCCC taught in Sedgwick County prior to the effective date of K.S.A. 71-609(b).
Out-District Resident/Course
Out-district residents and out-district courses are determined by statute. Persons enrolling in a community college who, if adults, have not been, or if minors, whose parents have not been, residents of the county in which is located the principal campus of such community college for six months prior to enrollment for any term or session are nonresidents of such community college district for out-district state aid entitlement, out-district tuition, and fee purposes. K.S.A. 71-401. “Residence” means the place which is adopted by a person as the person’s place of habitation and to which, whenever the person is absent, the person has the intention of returning. When a person eats at one place and sleeps at another, the place where the person sleeps shall be considered the person’s residence. K.S.A. 77-201 Twenty-third.
In addition to the statutory provision determining residence, there is statutory authority for the State Board to adopt rules and regulations prescribing criteria or guidelines for determination of residence of students for the purpose of determining liability of counties for out-district tuition of students in community colleges and out-district state aid entitlement. K.S.A. 71-403.
K.A.R. 91-8-31(a) defines “out-district course” as any class offered by a community college for credit at a location outside the community college district in which the community college is lo cated and which: (1) carries credit applicable to regular on-campus programs; (2) is commensurate in quality to on-campus courses; and (3) is taught by faculty chosen on the same criteria as full-time, on-campus faculty are chosen. K.A.R. 91-25-la(a)(l) defines “out-district student” as a student who is a resident of Kansas but who resides outside óf a community college district. Based on the statutes and regulations, the State Board determines an individual’s residence for the purpose of out-district tuition and out-district state aid entitlement. K.S.A. 71-403.
The State Board correctly certified that BCCC is entitled to collect out-district tuition for teaching courses for college credit to Sedgwick County residents (1) for classes taught at BCCC’s main campus and (2) for classes taught at McConnell prior to July 1, 1992, the effective date of K.S.A. 71-609(b). To collect out-district tuition for classes taught under the contract with McConnell subsequent to July 1, 1992, in addition to the contract with McConnell, BCCC must have specific authorization from the chief executive officer of WSU. K.S.A. 71-609(b).
We affirm the ruling of the district court that BCCC is entitled to judgment for out-district tuition due for classes not taught at McConnell and classes taught at McConnell prior to July 1, 1992. Because of our decision as to the McConnell classes taught subsequent to the effective date of 71-609(b), we remand die case to the district court for further proceedings to determine whether any out-district tuition is due BCCC for McConnell classes taught subsequent to July 1, 1992. We further affirm the district court’s finding, as argued by BCCC, that the law does not permit the imposition of prejudgment interest against a governmental entity. Because of our decision, the remaining issues are moot.
Affirmed in part, reversed in part, and remanded for further proceedings.
Abbott, J., not participating.
Edward Larson, Judge, assigned.
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The opinion of the court was delivered by
McFarland, J.:
Curtis L. Turner appeals from the revocation of his probation and the reinstatement of his original sentence in three separate cases. The sole issue is the applicability of the exclusionary rule to probation revocation proceedings. The district court held the rule to be inapplicable to probation revocation proceedings. The Court of Appeals held the rule should be applied where, as here, the involved police officers knew the defendant was on probation and reversed the decision of the district court revoking defendant’s probation. State v. Turner, 19 Kan. App. 2d 535, 873 P.2d 208 (1994). The matter is before us on petition for review.
The applicable facts are not in dispute and are summarized in the opinion of the Court of Appeals as follows:
“On January 25, 1991, Turner pled guilty in 90 CR 23 to five counts of burglary and four counts of theft. He was sentenced to a controlling term of two to five years’ imprisonment. On the same day, Turner pled guilty in 90 CR 799 to three counts of burglary and three counts of theft. He received a controlling sentence of three to seven years, with the sentence imposed in 90 CR 799 to run consecutive to the sentence imposed in 90 CR 23. The court later placed Turner on probation in both cases for a period of five years. As a condition of his probation, Turner was required to obey the laws of the State of Kansas.
“On September 18, 1991, Turner pled guilty in 91 CR 436 to conspiracy to possess marijuana with intent to sell. He was sentenced to a term of one to two years and again placed on probation for five years. One of the conditions of this probation was that Turner obey the laws of the State of Kansas.
“On November 6, 1992, law enforcement authorities executed a search warrant at Turner’s home in Wichita. During the search, the officers recovered substances which were alleged to be marijuana and cocaine. Turner was taken into custody and given a Miranda warning. He admitted under questioning to selling cocaine. On November 18, 1992, Turner was charged in 92 CR 2144 with possession of cocaine with intent to sell, possession of marijuana with intent to sell, and two counts of no tax stamp. On that day, Turner’s probation officer likewise filed a warrant based on the evidence recovered on November 6, alleging that Turner had violated tire conditions of his probation.
“The district court conducted a combination preliminary hearing/probation revocation hearing on December 22, 1992. The court denied Turner’s request that tire probation revocation proceedings be postponed until disposition of the new charges against him. During the hearing, the State offered the testimony of Wichita police detective Alan Prince. On cross-examination, Prince testified as follows:
‘Q: Now, when you went to the residence ... to execute the search warrant, you knew that Mr. Turner was on probation; correct?
‘A: Yes, I did.
‘Q: And one of the goals of executing the search warrant at the time and date that you did was for the purposes of obtaining evidence to revoke his probation; correct?
‘A: I really didn’t have any — if I wanted to — he wasn’t charged with any kind of probation violation when he was booked. That was never — that might have been a forethought, but the basic goal that day was to secure the residence, search the residence for any narcotics, and charge him for those narcotics that were located in the residence.
‘Q: Okay. And, as a forethought, you were aware that if you found narcotics in the residence and were able to charge him with a new crime, that that would probably result in a probation revocation; correct?
‘A: I was hoping it would, yes.
At the conclusion of the hearing, the court bound Turner over on the new charges and revoked his probation on the three earlier cases.
“Several months later, prosecutors determined that the affidavit supporting the warrant to search Turner’s home contained false statements made either deliberately or with recHess disregard for the truth. The individual in charge of the search and of the information contained in the affidavit supporting the search warrant was Prince. Because the warrant to search Turner’s home had been illegally obtained, the State determined the evidence recovered in the search was inadmissible and dismissed the charges against Turner in 92 CR 2144.
“Turner subsequently filed a motion to reconsider revocation of his probation in each of the three earlier cases. Turner argued that the exclusionary rule should be applied in a probation revocation hearing. The State conceded that, if the exclusionary rule were applicable, then there was no admissible evidence to support revocation of Turner’s probation. The district court denied Turner’s motion, finding as a matter of public policy that the exclusionary rule should not apply in a probation revocation hearing. The district court commented that, if Prince deliberately lied or intentionally misled a federal magistrate, he could be prosecuted under state law and subjected to an internal affairs investigation.” 19 Kan. App. 2d 535, 536-37.
The Fourth Amendment of the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of an illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974).
The primary purpose of the exclusionary rule is to deter unlawful police conduct. The rule “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. at 348. “The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960).
The rule is neither to be imposed in a vacuum nor administered mechanically. Rather, it should be applied in light of its deterrent purpose. United States v. Calandra, 414 U.S. at 348; United States v. Winsett, 518 F.2d 51 (9th Cir. 1975). Any extension of the rule beyond its traditional applicability in criminal proceedings is warranted only where the use of the remedy would result in appre dable deterrence of police misconduct. United States v. Leon, 468 U.S. 897, 909, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). Thus, in deciding whether or not to extend the exclusionary rule, the likelihood that the rule’s deterrent effect will be achieved should be balanced against the cost of withholding reliable information from the truth-seeking process. Illinois v. Krull, 480 U.S. 340, 347, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987); United States v. Calandra, 414 U.S. at 351-52. (Calandra denied extension of the rule to grand jury proceedings.)
Under Calandra, and in subsequent cases, the question whether to apply the exclusionary rule is determined by weighing the extent to which its application will deter law enforcement officials from committing unconstitutional acts against the extent to which its application will deflect the truth-finding process, free the guilty, and generate disrespect for the law and the administration of justice. Stone v. Powell, 428 U.S. 465, 485-95, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976) (exclusionary rule not applied during federal habeas corpus review).
The single issue before this court is whether the exclusionary rule should apply to a probation revocation hearing. The district court held it should not. The Court of Appeals held that it should, in circumstances where the search was conducted by a law enforcement officer who knew that the victim of the search was a probationer.
A majority of federal circuits, including the 10th Circuit, have held that the exclusionary rule does not apply to a probation revocation hearing. United States v. Finney, 897 F.2d 1047 (10th Cir. 1990); United States v. Bazzano, 712 F.2d 826, 830-34 (3d Cir. 1983), cert. denied 465 U.S. 1078 (1984); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir. 1978); United States v. Winsett, 518 F.2d at 53-55; United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir.), cert. denied 423 U.S. 987 (1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973); United States v. Hill, 447 F.2d 817, 819 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970) (parole revocation). See also Annot., Admissibility, In Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824.
One circuit has held that the exclusionary rule does extend to a probation revocation hearing. United States v. Workman, 585 F.2d 1205, 1211 (4th Cir. 1978).
Several state courts that have considered the issue have concluded that, as a general rule, the exclusionary rule does not apply in a probation revocation proceeding. See, e.g., State v. Sears, 553 P.2d 907, 913 (Alaska 1976); State v. Alfaro, 127 Ariz. 578, 623 P.2d 8 (1980); Payne v. Robinson, 207 Conn. 565, 571, 541 A.2d 504, cert. denied 488 U.S. 898 (1988); Commonwealth v. Olsen, 405 Mass. 491, 494-95, 541 N.E.2d 1003 (1989); Richardson v. State, 841 P.2d 603, 605 (Okla. Crim. 1992). C.f. State v. Swartzendruber, 120 Or. App. 552, 853 P.2d 842 (1993) (suppression of evidence based on state constitutional grounds). See also Annot., Admissibility, in State Probation Revocation Proceedings, of Evidence Obtained Through Illegal Search and Seizure, 77 A.L.R. 3d 636.
Some courts have created an exception to the general rule where the unlawful search is conducted by a law enforcement officer who knows that the subject of the search is a probationer. See, e.g., United States v. Vandemark, 522 F.2d 1019, 1022 (9th Cir. 1975); Sears, 553 P.2d at 914; Ex parte Caffie, 516 So. 2d 831, 835-36 (Ala. 1987); Payne, 207 Conn. at 573; State v. Davis, 375 So. 2d 69, 75 (La. 1979); Olsen, 405 Mass. at 496; People v. Perry, 201 Mich. App. 347, 505 N.W.2d 909 (1993); State v. Lombardo, 306 N.C. 594, 600, 295 S.E.2d 399 (1982). Some courts which recognize the exception have concluded that mere knowledge that the subject of an illegal search was a probationer is not enough. These courts have found that, absent a demonstration of police harassment of the probationer, or evidence that the illegal search was carried out because of the subject’s probationary status, the exclusionary rule would not apply. See, e.g., United States v. Wiygul, 578 F.2d 577 (1978); People v. Ressin, 620 P.2d 717 (Colo. 1980); State v. Jacobs, 229 Conn. 385, 641 A.2d 1351 (1994); People v. Stewart, 242 Ill. App. 3d 599, 610 N.E.2d 197 (1993).
Applying the balancing test set forth in Calandra, 414 U.S. 338, we must balance the potential injury to the probation process against the potential benefits of the rule as applied. In other words, would the suppression of illegally obtained evidence at a probation revocation hearing fulfill the deterrent value of the exclusionary rule as opposed to society’s interest in the rehabilitation of offenders in a probationaiy setting?
The primary purpose of probation is the successful rehabilitation of the offender. Toward that end courts are authorized to impose conditions and restrictions on the probationer’s liberty to afford the probationer a setting conducive to the rehabilitative process. See K.S.A. 1993 Supp. 21-4610.
We addressed the nature of probation in State v. Dubish, 236 Kan. 848, 853-54, 696 P.2d 969 (1985), where we stated:
“The basic purpose for probation is to provide a program whereby an individual is given the opportunity to rehabilitate himself without institutional confinement under the supervision of a probation official and under the continuing power of the district court to impose institutional punishment for the original offense if the probationer abuses fifis opportunity. It permits the sentencing judge to give a convicted person fire opportunity to mend his ways and have his freedom under conditions imposed. Probation is not granted out of a spirit of leniency, but is granted as a result of the evaluation of the characteristics of the offender and a determination that the offender may respond best to supervised control within the community and that public safety wall not be endangered. On the other hand, confinement is for individuals who are required to be isolated from the community in order to protect society or to provide a closely controlled environment for individuals who can learn to adjust their attitude or behavior for later release into the community. Confinement may serve as a deterrent to others in tire community.”
In United States v. Winsett, 518 F.2d at 54-55, the 9th Circuit set forth the reasons favoring the admission of illegally gathered evidence at probation revocation hearings as follows:
“An important aspect of our probation system is the placing of certain restrictions on the probationer, such as the requirement that he not associate with criminals or travel outside the judicial district. These conditions serve a dual purpose in that they enhance the chance for rehabilitation while simultaneously affording society a measure of protection. Because violation of probation conditions may indicate that the probationer is not ready or is incapable of rehabilitation by integration into society, it is extremely important that all reliable evidence shed ding light on the probationer’s conduct be available during probation revocation proceedings.
“Consequently, to apply the exclusionary rule to probation revocation hearings would tend to frustrate the remedial purposes of the probation system. Not only would extension of the rule impede the court’s attempt to assess a probationer’s progress or regression, but also it would force probation officers to spend more of their time personally gathering admissible proof concerning those probationers who cannot or will not accept rehabilitation.”
Winsett also discusses the risks inherent in blindly admitting all illegally obtained evidence in probation revocation hearings as follows:
“[W]hen the police at the moment of the search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding. The police have nothing to risk: If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of a new crime; and if tire motion were granted, the defendant would still find himself behind bars due to revocation of probation. Thus, in such circumstances, extension of the exclusionary rule may be necessary to effectuate Fourth Amendment safeguards.” United States v. Winsett, 518 F.2d at 54 n.5.
A cogent rationale for not applying the exclusionary rule to probation revocation proceedings is set forth in State v. Alfaro, 127 Ariz. at 580, as follows:
“’[T]he suppression of probative but tainted evidence exacts a costly toll upon the ability of the courts to ascertain the truth . . . .’ United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445 (1980). We will pay the price where the purpose of deterrence is served but if application of the exclusionary rule does not effectuate deterrence tiren the exclusionary rule is being misapplied. It can not be said application of the exclusionary rule makes evidence more or less rehable nor can it be said the rule furthers the purposes of probation. Moreover, the Supreme Court has said: ‘Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence is made inadmissible to the prosecution in its case in chief.’ Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645 (1971).
“We think any additional benefit in double application of the exclusionary rule is outweighed by the harm done to the rehabilitative goal of probation. Rather than saying the police will have less incentive to obey the law, we think the probationer will have greater incentive to obey the terms of his probation if any rehable information will be available at a probation revocation hearing. We hold the exclusionary rule does not apply in probation violation hearings.”
The rationale employed by the Court of Appeals in reversing the district court’s revocation of defendant’s probation is as follows:
“In summary, we find persuasive tire numerous decisions from other jurisdictions which conclude that the exclusionary rule should be applied in probation revocation hearings where the unlawful search is conducted by a law enforcement officer who knows that the victim of tire search is a probationer. The deterrence which may be achieved by applying the rule in these circumstances outweighs the cost of removing illegally obtained evidence from the district court’s consideration.
“Under the circumstances of this case, another purpose of the exclusionary rule merits consideration. The ‘imperative of judicial integrity’ was referenced in Elkins v. United States, 364 U.S. 206, 222, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960), emphasizing that the courts must not become ‘accomplices in the willful disobedience of a Constitution they are sworn to uphold.’ 364 U.S. at 223. While this purpose has received less attention than deterrence in the more recent cases, it is surely pertinent here where the Fourth Amendment violation consisted of misrepresentations to a federal magistrate.” 19 Kan. App. 2d at 540.
We disagree. As noted in the Court of Appeals opinion herein, the majority of courts do not, as a general rule, apply the exclusionary rule to probation revocation proceedings. 19 Kan. App. 2d at 537. Some courts apply an exception where the police officer making the illegal search knows the subject of the search is on probation. We believe the bare fact of such knowledge is an inappropriate basis for an exception to the general rule. In rural areas, most law enforcement officers would know who is and who is not a probationer. In urban areas, officers assigned to units involved in the investigation of specific types of crimes would be likely to know individuals who have previously been arrested by their units for these specialized crimes and that such individuals are on probation. Drug enforcement and vice departments are examples thereof. Further, such an exception would create illogical results. Let us assume an officer sees what he or she thinks may be an illegal drug sale occurring. The officer knows one of the individuals is on probation — the other party thereto is a stranger. Without probable cause, a search is made and evidence of the crime is seized. Both parties are, in fact, on probation. No logical purpose is served by admitting it in one party’s probation revocation proceeding and excluding it in the other, based solely on the officer’s knowledge (or lack thereof) as to the individual’s probationary status.
As to the “judicial integrity” justification for exclusion espoused by the Court of Appeals, we find it unpersuasive. If judicial integrity is a viable consideration herein, it is a further reason for not applying the exclusionary rule. Violation of the terms of probation is, in a sense, a violation of the court’s trust. For example, look at the facts herein. Defendant pled guilty to 15 crimes on January 25, 1991, including multiple felonies, and was placed on probation. In September of the same year, defendant pled guilty to another felony and was, again, placed on probation. A little over a year later, the present violation occurred. It would appear that if judicial integrity is a valid consideration herein, the court’s integrity is better served by permitting it to consider reliable evidence that a serious violation of a probationary term has occurred.
We conclude that, generally, the exclusionary rule should not apply to probation revocation proceedings. We do not recognize an exception thereto based solely on whether or not the officer involved in the illegal search and seizure knew of defendant’s probationary status. We further conclude that there may be instances where the illegal acts of police officers, in the totality of the circumstances, are so egregious that the need for their deterrence outweighs the court’s need for information.
One of the difficulties herein is that we do not have before us the affidavit for the search warrant or specifically what statements therein were deemed by the district attorney’s office to be “false statements either deliberately made or made with reckless disregard for the truth.” By virtue of the way this case developed, such information was not presented to the district court.
We, therefore, must remand the case to the district court to conduct an evidentiary hearing to consider the totality of the circumstances involved and to determine whether or not the unlawful police activity herein was so egregious as to warrant application of the exclusionary rule.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Six, J.:
The case concerns the constitutionality of retroactive legislation which affects accrued tort actions.- The Resolution Trust Corporation (RTC) has asserted state law claims of negli gence and breach of fiduciary duty against former officers and directors of Franklin Savings Association (Franklin) of Ottawa, Kansas. The case is proceeding in federal district court. The Hon. John W. Lungstrum of the United States District Court for the District of Kansas certifies the following questions:
"(1) Under Kansas law, does the holder of accrued tort actions for negligence and breach of fiduciary duty, which have not yet been reduced to judgment, have a vested property right in those causes of action?
“(2) Is S.B. 762 [K.S.A. 1994 Supp. 9-1133 and K.S.A. 1994 Supp. 9-1134], which makes K.S.A. [1994 Supp.] 17-5831 retroactive, unconstitutional under the constitution of the State of Kansas when applied to claims which accrued prior to its enactment?”
Our jurisdiction is under K.S.A. 60-3201, the Uniform Certification of Questions of Law Act. We answer both questions in the affirmative, limiting our answers to the facts presented.
FACTS
The RTC and Franklin have been opposing litigants for five years. On February 15, 1990, the RTC was appointed conservator. The conservatorship was vigorously contested, initially denied, but eventually approved in Franklin Sav. v. Office of Thrift Supervision, 742 F. Supp. 1089 (D. Kan. 1990), rev’d 934 F.2d 1127 (10th Cir. 1991), cert. denied 117 L. Ed. 2d 619 (1992). The conservatorship was later converted to a receivership. See Franklin Sav. Ass’n v. OTS, 821 F. Supp. 1414 (D. Kan. 1993), aff’d 35 F.3d 1466 (10th Cir. 1994).
On February 12, 1993, the RTC filed the instant civil action against a number of former Franklin directors. The district court has published three opinions in connection with the case. See Resolution Trust Corp. v. Fleischer, 848 F. Supp. 917 (D. Kan. 1994) (motion for partial summary judgment); Resolution Trust Corp. v. Fleischer, 835 F. Supp. 1318 (D. Kan. 1993) (motion to strike affirmative defenses); Resolution Trust Corp. v. Fleischer, 826 F. Supp. 1273 (D. Kan. 1993) (motion to dismiss all claims).
The district court provides the following facts:
“This case involves a suit brought by plaintiff RTC alleging various causes of action against former directors and officers of [Franklin]. Tbe claims asserted by the RTC against the defendants are various state law causes of action arising out of a series of transactions involving tax-exempt revenue bonds known as credit-enhancement projects and alleged losses sustained through various broker-dealer subsidiaries of [Franklin]. All of the RTC’s state law claims are based on theories of simple negligence or negligent breach of fiduciary duty. The RTC does not allege any breach of the duty of loyalty, any willful or wanton or grossly negligent breach of the duty of care, any criminal violation of the Kansas savings and loan code, or any improper personal benefit from any transaction. All of the RTC’s claims arise from actions taken by defendants prior to tire time the RTC was appointed conservator on February 15, 1990.” (Emphasis added.)
During its 1993 session, the Kansas Legislature passed a law limiting potential personal liability for certain officers and directors of savings and loan associations. Now codified at K.S.A. 1994 Supp. 17-5831, the law, which took effect May 20, 1993, provides:
“Except for persons who are executive officers, an officer or director of a savings and loan association, federal savings association or federal savings bank shall have no personal liability to the savings and loan association, federal savings association or federal savings bank or its members or stockholders for monetary damages for breach of duty as an officer or director, except that such liability shall not be eliminated for: (a) Any breach of the officer’s or director’s duty of loyalty to the association or bank, its members or stockholders; (b) acts or omissions which constitute willful or gross and wanton negligent breach of the officer’s or director’s duty of care; (c) acts in violation of K.S.A. 17-5412, 17-5811 and 17-5812 and amendments thereto; or (d) any transaction from winch the officer or director derived an improper personal benefit. For purposes of this section, 'executive officer' means the chairperson of the board, the president, each vice president, the cashier, the secretary and die treasurer of a savings and loan association, federal savings association or federal savings bank, unless such officer is excluded by resolution of the board of directors or by die bylaws of die savings and loan association, federal savings association or federal savings bank from participation in the policymaking functions of the savings and loan association, federal savings association or federal savings bank, and the officer does not actually participate in the policymaking functions of the savings and loan association, federal savings association or federal savings bank.”
From reading the definition of “executive officer” in 17-5831, it appears that die legislature’s aim was to provide greater protection from personal liability to individuals commonly referred to as “outside” directors or officers. In 17-5831, the legislature essentially overruled the existing common law in Kansas under which “outside” directors of savings and loan associations could be held liable for negligence and breach of fiduciary duty. See Wichita Fed’l Savings & Loan Ass’n v. Black, 245 Kan. 523, 530, 781 P.2d 707 (1989); Federal Savings & Loan Ins. Corp. v. Huff, 237 Kan. 873, 704 P.2d 372 (1985).
In 1994, largely in response to several RTC civil, actions filed against former officers and directors, including the present one, which were pending when 17-5831 took effect, the legislature was encouraged to make 17-5831 retroactive. Judiciary Committee members heard testimony from former savings and loan directors suffering financial and personal hardships resulting from defending the RTC actions. An attorney for several FranWin defendants, in fact, urged the legislature to “put a stop” to the RTC’s pending negligence suits against outside directors by making 17-5831 retroactive.
The legislature responded by passing S.B. 762, which made 17-5831 applicable to any action that had not been finally adjudicated when 17-5831 took effect on May 20, 1993.
S.B. 762, now codified at K.S.A. 1994 Supp. 9-1133 and K.S.A. 1994 Supp. 9-1134, states in pertinent part:
“Section 1. The provisions of . . . 17-5831 and amendments thereto apply to an action brought against a director or officer of an insured depository institution, regardless of whether the action was filed before, on, or after May 20, 1993, unless the action was finally adjudicated before May 20, 1993. The provisions of this section shall not apply to executive officers as defined in ... 17-5831 and amendments thereto.”
The district court has noted that if S.B. 762 survives constitutional challenge, it eliminates most of the RTC’s claims in the federal case.
Several Franklin defendants moved for summary judgment in reliance on S.B. 762. The RTC countered by claiming it has a vested property right under Kansas law in its accrued tort causes of action. Applying 17-5831 retroactively would amount to a taking of property without due process in violation of the United States Constitution. Reviewing Kansas law, the district court found “no clear pronouncements” on whether an accrued tort cause of action is considered a vested property right. Sampling other jurisdictions, the district court observed a split of authority; consequently, question one was certified to this court.
The RTC further contended that a retroactive application of 17-5381 would violate the Kansas Constitution, particularly § 18 of the Bill of Rights. The district court also found the § 18 cases in Kansas to be unclear, and certified question two.
DISCUSSION
Question One:
Under Kansas law, does the holder of accrued tort actions for negligence and breach of fiduciary duty, which have not yet been reduced to judgment, have a vested property right in those causes of action?
We have stated: “The right to a cause of action has long been held to be a protected property interest.” Harrison v. Long, 241 Kan. 174, 179, 734 P.2d 1155 (1987). Likewise, we observe that the United States Supreme Court has suggested that accrued causes of action are a “species of property’ protected by the Fourteenth Amendment’s Due Process Clause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982) (state statutory discrimination claim); Martinez v. California, 444 U.S. 277, 281, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980) (state tort claim). The certified question inquires whether Kansas law regards an accrued cause of action as a “vested” property right.
One commentator has aptly noted: “[I]t has long been recognized that the term Vested right’ is conclusory — a right is vested when it has been so far perfected that it cannot be taken away by statute.” Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 696 (1960). Numerous authorities have recognized inconsistencies in the use of the term “vested rights” in the context of retroactive legislation, and some have questioned the wisdom of a vested rights analysis. See Phillips v. Curiale, 128 N.J. 608, 621, 608 A.2d 895 (1992) (“ ‘[Discerning commentators and judges’ have questioned the value of vested rights analysis.”); Peterson v. City of Minneapolis, 285 Minn. 282, 287, 173 N.W.2d 353 (1969) (“[Retroactive laws . . . are usually upheld as long as they do not interfere with vested legal rights. The rule itself seems simple enough, but the difficulty comes in defining what is a vested right.”).
We, too, find the “vested rights” area of the law to be murky. Courts and litigants sometimes rely on broad pronouncements that a particular right is or is not a “vested right,” without careful scrutiny of the facts underlying the cases cited in support of the conclusion. As explained below, the analysis of whether a right is “vested” may include considerations other than merely the nature of the right as “property.” Separating the ultimate due process analysis from the “vested rights” inquiry is virtually impossible under the cases we have reviewed. The district court acknowledged the virtual inseparability of the two inquiries in explaining that when vested rights are found to exist, retroactive legislation is “nearly universally deemed” unconstitutional.
The district court’s second question concerns only the constitutionality of S.B. 762, i.e., the retroactive application of 17-5831. Consequently, our opinion is limited to the retroactivity issue. Our answers to the certified questions are based on and limited to the facts and circumstances in the instant case.
Kansas Law
We, like many courts, have used the term “vested rights” to describe rights which cannot be taken away by retroactive legislation. See Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992) (right to a defense based on expiration of statute of repose is a vested right). Often the term is used in the negative to explain why other rights may be impaired. See, e.g., Smith v. Printup, 254 Kan. 315, 326, 866 P.2d 985 (1993) (plaintiff has no vested right to punitive damages); Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 474, 618 P.2d 778 (1980) (defendant has no vested right in a favorable judgment until it is no longer reviewable); State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978) (doctor has no vested right to insist that rule permitting him to practice without liability insurance must remain unchanged for his benefit); State, ex rel. v. School Dist., 163 Kan. 650, 655, 185 P.2d 677 (1947) (no vested rights in the existence or boundaries of a school district); Brown v. City of Topeka, 146 Kan. 974, 981, 74 P.2d 142 (1937) (residents have no vested right to insist on continu ation of city street name); Bowen v. Wilson, 93 Kan. 351, 353, 144 Pac. 251 (1914) (no vested right of appeal); Wheelock v. Myers, 64 Kan. 47, 51, 67 Pac. 632 (1902) (no vested right in a rule of evidence).
As the district court and parties have noted, there is no Kansas case addressing whether the legislature can retroactively change a common-law duty of care, thereby eliminating an accrued and pending tort cause of action. Kansas law, however, recognizes some general principles relevant to the question.
First, we have drawn a distinction between substance and procedure when considering the presence or absence of vested rights. “There is no vested right in any particular remedy or method of procedure.” Jones v. Garrett, 192 Kan. 109, Syl. ¶ 6, 386 P.2d 194 (1963). “A different rule applies, however, to substantive laws. They affect vested rights and are not subject to retroactive legislation.” Harding, 250 Kan. at 668; Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994). Procedure has been described as the “machinery for carrying on the suit, including pleading, process, evidence, and practice,” and “the mode or proceeding by which a legal right is enforced, that which regulates the formal steps in an action.” Jones, 192 Kan. 109, Syl. ¶¶ 2, 4. Substance, on the other hand, has been described as “the law which gives or defines the right,” the “law which gives the right or denounces the wrong,” and “the law creating any liability against the defendant for his tort committed.” Jones, 192 Kan. at 114-15.
The line between procedure and substance is not always easy to mark, but the instant case presents no difficulty. On which side of the line does S.B. 762 fall? If upheld, S.B. 762 would retroactively change the “law which gives or defines the right.” The RTC rights at stake are substantive, and the defendants do not contend otherwise.
A second principle emerging from our case law is that we have recognized the “accrual” of a cause of action as a significant event and have even linked the moment of accrual to the creation of vested rights. Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979). In Nitchals, we had to decide whether a retroactive ap plication of K.S.A. 1977 Supp. 40-3113a(e) would impair vested rights belonging to a Personal Injury Protection (PIP) insurer. We identified the moment that the PIP insurer s right to reimbursement or subrogation accrued. Since that moment had not arisen when the new law took effect, we determined that the . PIP insurers had no vested rights affected by the change in the law. 225 Kan. at 294-95. Thus, in Nitchals, we linked the PIP insurer s vested right to subrogation to the “accrual” of such right, not to the point in time when such right was ultimately satisfied and no longer subject to contention or review. 225 Kan. at 294.
Defendants argue that an accrued cause of action is not a vested property right because it is inchoate and affords no definite or enforceable property right until reduced to final judgment, and its value is contingent on successful prosecution to judgment. This argument fails to recognize the distinction between a right of action and a right of recovery. Accrual of a cause of action means the right to institute and maintain an action for enforcement. Kinnard v. Stevens, 122 Kan. 347, 349, 251 Pac. 1085 (1927). The accrual right is a present right and it has value, even'if not easily measured in dollars. Recovery, meanwhile, is contingent not only on successful prosecution to judgment, but the defendant’s ability to pay. The RTC is not claiming that it has a vested right to recover damages from the Franklin defendants, only a vested right to continue its causes of action under the substantive law that existed prior to 17-5831, when the causes of action accrued.
The defendants also rely heavily on the rule, cited frequently in various forms, that “[t]here can be no vested right in an existing law which precludes its change or repeal.” Brown, 146 Kan. at 981. Stated another way: “No person has a vested right in any rule of law entitling him to insist it shall remain unchanged for his benefit.” Liggett, 223 Kan. at 612. The same rule has also been phrased more specifically with respect to negligence actions: “[a]n individual does not . . . have a vested right in the common-law rules governing negligence actions.” Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 358, 789 P.2d 541 (1990); see West v. Collins, 251 Kan. 657, 662, 840 P.2d 435 (1992); Bair v. Peck, 248 Kan. 824, 838-39, 811 P.2d 1176 (1991); Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974). Neither Samsel, West, nor Bell involved a challenge to the retroactive application of legislation to an accrued and pending cause of action. The RTC, in the case at bar, does not challenge the prospective validity of 17-5831. The defendants’ reliance on the rule that there is no vested right in common-law rules is misplaced.
In Nadel, we considered the validity of retroactive legislation. The issue was whether a new law granting a right to appeal to county tax officials could be applied to a pending case. The new law would extend the proceedings and possibly result in the reversal of a favorable judgment received by the taxpayers. We said: “There can be no vested right in an existing law which precludes its change or repeal as applied to pending litigation.” 228 Kan. at 473. (Emphasis added.) The Nadel statement must be viewed in its proper context. Nadel expressly held that the new law in question was procedural, and therefore could be applied retroactively without causing a “vested rights problem.” 228 Kan. at 475. We continue to recognize a distinction between procedural and substantive laws when the question is whether such laws can be applied retroactively without impairing vested rights. See Rios, 256 Kan. at 190; Harding, 250 Kan. at 668.
Other Jurisdictions
The parties argue extensively from other jurisdictions. The district court and the parties found an apparent split of authority on the question of whether an accrued cause of action constitutes a vested property right.
Many cases appear to hold that a party has no vested property right to a cause of action until it is reduced to a final, unreviewable judgment. See, e.g., Salmon v. Schwarz, 948 F.2d 1131, 1143 (10th Cir. 1991); Arbour v. Jenkins, 903 F.2d 416, 420 (6th Cir. 1990); Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989); Grimsey v. Huff, 876 F.2d 738, 741 (9th Cir. 1989); In re Consol. U.S. Atmospheric Testing Litigation, 820 F.2d 982, 988 (9th Cir. 1987); Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986); Jefferson Disposal Co. v. Parish of Jefferson, LA., 603 F. Supp. 1125, 1137 (E.D. La. 1985); Clausell v. Hobart Corp., 515 So. 2d 1275 (1987); Hendon v. DeKalb County, 203 Ga. App. 750, 759, 417 S.E.2d 705 (1992); Phillips v. Curiale, 128 N.J. at 626; Texas Gas Exploration Corp. v. Fluor Corp., 828 S.W.2d 28, 32 (Tex. Civ. App. 1991); Johnson v. Continental West, 99 Wash. 2d 555, 563, 663 P.2d 482 (1983).
On the other hand, many cases appear to hold that a cause of action becomes a vested property right once it has accrued. See, e.g., Mathis v. Eli Lilly and Co., 719 F.2d 134, 141 (6th Cir. 1983); Thorp v. Casey’s General Stores, Inc., 446 N.W.2d 457, 460-61 (Iowa 1989); Karl v. Bryant Air Conditioning, 416 Mich. 558, 573, 331 N.W.2d 456 (1982); Schendt v. Dewey, 246 Neb. 573, 577, 520 N.W.2d 541 (1994); St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915, 920 (Okla. 1989); Gibson v. Com., 490 Pa. 156, 161, 415 A.2d 80 (1980); Berry By and Through Berry v. Beech Aircraft, 717 P.2d 670, 676 (Utah 1985); Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 695, 408 S.E.2d 634 (1991).
An examination of the cited authorities reveals that the apparent conflicting holdings are not as divergent as they initially appear. Many of the seemingly contrary cases are explained at least in part by important factual differences. Reviewing “vested rights” cases requires a look beyond the labels to the ingredients which shaped the courts’ conclusions. Important factors are: (1) the nature of the rights at stake (e.g., procedural, substantive, remedial), (2) how the rights were affected (e.g., were the rights partially or completely abolished by the legislation; was any substitute remedy provided), and (3) the nature and strength of the public interest furthered by the legislation. See Hochman, 73 Harv. L. Rev. at 697. Although, as one court has noted, these factors “are as nebulous as the term itself,” Peterson, 285 Minn. at 288, they nonetheless help explain why courts have reached what, on the surface, appear to be conflicting conclusions about whether particular rights are “vested rights,” immune from retroactive legislation. Several courts have incorporated Hochman’s factors or similar ones into tests for the constitutionality of retroactive legislation. See Jefferson Disposal, 603 F. Supp. at 1136; Phillips, 128 N.J. at 621; Peterson, 285 Minn. at 288.
We turn now to a review of specific cases. We conclude that the cases relied on by the defendants in contending that no vested right exists in a tort claim until final judgment are distinguishable from the case at bar. Several of the federal cases cited by the defendants involved state tort claims preempted by either the Nuclear Energy Authorization Act or the Federal Employees’ Liability Reform and Tort Compensation Act. (See Salmon, Arbour, Sowell, Hammond, Atmospheric Testing). Both of those statutes allowed, the plaintiffs to pursue judicial remedies in the federal courts. Thus, the plaintiffs in those cases were not deprived of their right to judicial redress entirely, but were shifted from one remedial scheme to another.
Two cases relied on by the defendants involved retroactive legislation that, the courts acknowledged, merely cured or clarified defects in existing ambiguous statutes. See Grimsey, 876 F.2d at 741-42; Johnson, 99 Wash. 2d at 563. Those cases did not abolish common-law accrued causes of action. Such curative legislation has been viewed as an exception to the general rule against retroactive legislation impairing substantive rights. See Hochman, 73 Harv. L. Rev. at 703-06.
Two other cases relied on by the defendants involved retroactive legislation aimed at urgent problems of great public interest. See Taxpayers for the Animas-La Plata v. Animas-La Plata, 739 F.2d 1472, 1478 (10th Cir. 1984) (taxpayers’ challenge to the validity of water district "ballooned into a matter of great consequence for the entire state of Colorado,” and the legislation abrogating the taxpayers’ challenge was supported by a “discemable public purpose’’); Jefferson Disposal, 603 F. Supp. at 1136 (federal statute limiting local governments’ liability for damages for federal antitrust violations deemed "a matter of great national concern,” and plaintiffs were still left with a valuable remedy).
There is no such urgent public interest underlying S.B. 762. The retroactive application of 17-5831 serves only the interests of the defendants in pending cases brought against them. Prospectively, 17-5831 may serve legitimate public interests in encouraging people to serve as outside directors, and encouraging savings and loan associations to lend money with less fear of neg ligence liability, but these interests are not served to any greater degree by making 17-5831 retroactive.
Several other cases cited by the defendants are also distinguishable or rely on conclusory language or reasoning with which we disagree. In Clausell, 515 So. 2d at 1276, the focus of the vested-rights inquiry was upon the retroactivity of a judicial decision, not a statute. We note that a Florida intermediate court has since observed that neither Clausell’s vested-rights holding, nor the cases it cites are “authority for the proposition that a state, once a cause of action has accrued and suit commenced, may abolish or diminish the claimant’s right to be fully compensated for the damages incurred.” City of Winter Haven v. Allen, 541 So. 2d 128, 132 (Fla. Dist. App. 1989). The Texas Court of Appeals in Texas Gas Exploration reasoned that the 10-year repose statute was intended to be applied retroactively. 828 S.W.2d at 32. We have reached the opposite result. Harding, 250 Kan. at 668.
The defendants have cited one intermediate appellate court case, Hendon v. DeKalb County, 203 Ga. App. 750, which supports their position. In Hendon, the Georgia Court of Appeals upheld the constitutionality of retroactively applying a 1990 statute eliminating “gross negligence” liability to a plaintiff’s pending tort cause of action, which had accrued in 1986. The plaintiff’s theory was based solely on gross negligence. The Court of Appeals affirmed the defendants’ motion for summary judgment based on the 1990 law, reasoning that “[u]ntil time for review has passed, a party has no vested right to a cause of action which has been removed by legislative enactment.” 203 Ga. App. at 759.
Two observations explain our reservations about Hendon. First, the vested-rights holding was made upon a motion for reconsideration and was stated in conclusory fashion with no supporting reasoning. Second, the decision strikes us as inconsistent with the holding of the Georgia Supreme Court in Synalloy Corp. v. Newton, 254 Ga. 174, 176-77, 326 S.E.2d 470 (1985), which stated:
“At such time as there shall co-exist all of the elements which, at law, combine to create a cause of action, that cause of action is deemed to be vested, and thereafter cannot be diminished by legislative act. Before that time, however, when the elements which ultimately might combine to create the cause of action are as yet inchoate, a new statute may delineate any cause of action which shall mature after its effective date.
“In Georgia, a cause of action in tort does not vest until three elements exist: (1) the person is injured; and (2) learns or reasonably should have learned of tire injury; and (3) learns or reasonably should have learned of tire cause of the injury.”
Thus, without citing or acknowledging Synalloy Corp., the Georgia Court of Appeals in Hendon seemed to reach a conflicting conclusion. We disagree with the result and the reasoning in Hendon.
Of all the cases cited by defendants as holding that an accrued cause of action is not a vested right, perhaps the most analogous to the instant case is Phillips v. Curiale, 128 N.J. 608, 608 A.2d 895 (1992) (Phillips II). In Phillips II, the plaintiff, a member of the New Jersey National Guard, was injured while riding in an armored personnel carrier driven by the defendant, a fellow Guard member. The plaintiff filed suit in 1980. In 1987, his case was still pending. That year, in response to an invitation from the New Jersey Supreme Court, the New Jersey Legislature passed a law eliminating liability for Guard members for negligence in the line of duty. See Phillips v. State Dept. of Defense, 98 N.J. 235, 486 A.2d 318 (1985) (Phillips I). The law was not made retroactive.
The Phillips II court considered the question of vested rights in dicta, explaining that it would address the issue in case the legislature amended the law to make it retroactive. The court concluded that “inchoate tort claims have not been regarded as vested rights of sufficient status to withstand, in all circumstances, a clear legislative intent to apply retroactively the amendments to plaintiff’s cause of action.” 128 N.J. at 625. (Emphasis added.) With respect to the particular circumstances present in Phillips II, the court noted that “[t]he specter of soldier suing soldier for a service-related accident” could have been viewed as “destructive of the morale and camaraderie that is essential to military teamwork and discipline.” 128 N.J. at 626. Phillips II further assumed “that the legislation would not leave petitioner remediless under the military compensation law.” 128 N.J. at 627.
Phillips II also has elements that distinguish it from the case at bar. We note the strength of New Jersey s public interest in the military, the assumption of a military remedy, and the court’s conclusion on retroactivity appearing as dicta. We also find the judicial invitation for New Jersey’s legislative action significant.
In summary, the defendants have not cited a case that we find persuasive in support of their argument that S.B. 762 did not impair vested rights belonging to the RTC.
The RTC relies on Thorp v. Casey’s General Stores, Inc., 446 N.W.2d 457 (Iowa 1989) which is similar to the case at bar. In Thorp, a 13-year-old child was fatally injured by a drunken driver on April 1, 1985. In 1987, the child’s mother brought suit against the store, where the driver had purchased beer before the accident. At the time of the accident, the Iowa Dramshop Act provided a right of action against any licensee “who shall sell or give any beer ... to any such person while . . . intoxicated, or serve any such person to a point where such person is intoxicated.” In 1986, however, the Iowa Legislature amended the statute, striking the “sell or give” language and replacing it with “sold and served.” Mrs. Thorp conceded that the store did not “serve” beer to the driver. 446 N.W.2d at 459.
The question was whether the 1986 “sold and served” amendment applied to Thorp’s action, which was filed in 1987 but which accrued in 1985. By the express terms of the statute, it was to apply to any action filed after July 1, 1986. The district court applied the statute to Thorp’s case and dismissed the claims against Casey’s General Stores. The Iowa Supreme Court reversed, holding the application of the 1986 amendment retroactively to Thorp’s claim was unconstitutional because it “work[ed] a substantive change in the law” and “deprived Thorp of her cause of action.” The court reasoned:
“In summary, the 1986 amendment that deprived plaintiff of her cause of action does not fall within those categories of curative or emergency legislation that involve an overriding public interest and which can constitutionally be applied retroactively. Neither do we believe that the legislation was merely a change in procedure or remedy. Rather, we believe that plaintiff had a vested property right in her cause of action against Casey”s . . . .” 446 N.W.2d at 463.
In the case at bar, as in Thorp, there does not appear to be a compelling public interest in retroactivity. Any public interest supporting K.S.A. 1994 Supp. 17-5831, whether encouraging people to be directors or encouraging lenders to make loans, is prospective in nature and not furthered by S.B. 762.
Other cases cited by the RTC offer implicit support for its position. For example, Lewis v. Caanan Valley Resorts, Inc., 185 W. Va. 684, upheld the constitutionality of the West Virginia Skiing Responsibility Act, which precluded an injured plaintiff from suing a ski lift operator for negligence. The West Virginia Court reasoned that “the Act did not impair any vested rights of the plaintiff’s because the Act was enacted prior to accrual of the plaintiffs’ common-law causes of action.” 185 W. Va. at 695. Similarly, in Resolution Trust Corp. v. Hess, 820 F. Supp. 1359 (D. Utah 1993), the RTC sued former savings and loan directors for common-law negligence. In 1993, well after the RTC’s claims had accrued and the case had been filed, the Utah Legislature passed a law similar to K.S.A. 1994 Supp. 17-5831, removing director liability except for “gross negligence or willful misconduct.” There was no question of retroactivity because the Utah Legislature made it clear that the law was not retroactive. The district court noted, however, that the law would “affect vested rights,” implying that it could not be applied retroactively even if the legislature had so intended. 820 F. Supp. at 1365 n.5.
The weight of authority rests with the RTC. Its common-law causes of action for negligence and negligent breach of fiduciary duty were, under the facts of this case, “vested property rights” under Kansas law. The answer to certified question one is “yes,” as qualified by our analysis.
Certified Question Two:
Is S.B. 762, which makes K.S.A. 17-5831 retroactive, unconstitutional under the constitution of the State of Kansas when applied to claims which accrued prior to its enactment?
The RTC has also challenged the constitutionality of S.B. 762 under the Kansas Constitution. We have previously considered federal court certification on the constitutionality of Kansas statutes. Bair v. Peck, 248 Kan. 824, 826, 811 P.2d 1176 (1991); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 337, 789 P.2d 541 (1990). The prologue to our analysis recognizes the presumption of constitutionality.
“The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear die statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if tirere is any reasonable way to construe the statute as constitutionally valid, that should be done.” Bair, 248 Kan. at 829.
Section 18 of the Kansas Bill of Rights
Section 18 of the Kansas Bill of Rights provides:
“Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
In Ernest v. Faler, 237 Kan. 125, 697 P.2d 870 (1985), we considered the nature of the § 18 inquiry. We held unconstitutional a statute, K.S.A. 2-2457 (Ensley), which required a person damaged from a pesticide application to file a written statement of damage with the county attorney within 60 days of the damage discovery in order to maintain a civil action to recover damages. 237 Kan. 125, ¶ 1.
We held “that the provisions of K.S.A. 2-2457 are void and unenforceable as a violation of the due process and the equal protection clauses of the United States and Kansas Constitutions.” 237 Kan. at 127.
After an analysis of the distinction between the concepts of due process and equal protection, we commented:
“The right of the plaintiff involved in this case is the fundamental constitutional right to have a remedy for an injury to person or property by due course of law. This right is recognized in the Kansas Bill of Rights § 18, which provides that all persons, for injuries suffered in person, reputation or property, shall have a remedy by due course of law, and justice administered without delay. In 1904, tire term, ‘remedy by due course of law,’ was defined in Hanson v. Krehbiel, 68 Kan. 570, 75 Pac. 1041 (1904), as follows:
“ ‘Remedies by due course of law,” as used in section 18 of the bill of rights, means the reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.” Syl. ¶ 2.’ 237 Kan. at 131.
We concluded by stating, “[I]t is clear that the right of person injured by the tortious act of another to a remedy for his injuries is one of the basic constitutional rights guaranteed protection by the Kansas courts.” 237 Kan. at 132. “Remedy by due course of law is tied to due process concerns.” In re Marriage of Soden, 251 Kan. 225, 233, 834 P.2d 358 (1992).
We have endorsed special due process rules applicable to retroactive legislation in our discussion under question one. Substantive laws affecting vested rights cannot be made retroactive without violating due process. See Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994); Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). We conclude under Kansas law that S.B. 762 violates due process and, therefore, § 18 of the Kansas Constitution Bill of Rights.
We have searched for any reasonable way to construe S.B. 762 as constitutionally valid. We have a duty to uphold the statute, if possible. Our search has not been successful. Retroactivity has presented an insurmountable constitutional infirmity.
The answer to certified question two is “yes.”
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The opinion of the court was delivered by
Abbott, J.:
The defendant, Marc R. Warden, was convicted of indecent liberties with a child. This direct appeal raises issues concerning the victim’s competency to testify and ability to communicate.
The alleged victim, JK, 12 years old at the time of trial, was diagnosed with autism and severe or profound mental retardation. Autism is a developmental disability which typically arises during early childhood. Autism is defined in the American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders § 3, p. 38 (3d ed. rev. 1987) and may involve cognitive disorder, including mental retardation, and an inability to communicate. Among the impairments associated with autism are impaired social interaction, impaired imitation of others, limited or no speech, and a restricted repertoire of abilities, activities and interests. People with autism frequently become distraught at any change in their physical environment or in their schedule or routine.
JK became a resident at the Institute of Logopedics (IOL) (now called Heartspring) in Wichita in September 1989. Prior to JK’s admission he was nonverbal and nonexpressive, had limited receptive language, and did not respond to verbal directions. Nonverbal tests, including completing puzzles and identifying letters of the alphabet, were conducted to evaluate JK’s skills. Through one such test in 1991, JK was classified at a mental age of 27 months; however, that test was believed to be invalid. In general, JK had skills comparable to those of a “normal” two- or three-year-old, but he performed some skills at the five-year-old level. JK was able to select his name from a group of words, as long as there were no other words beginning with a “J.” He was able to identify only 5 letters of the alphabet. By 1992 JK still had no verbal skills but was able to sign (sign language) some words, indicate yes and no, respond to commands, and use a picture communication book to identify his immediate needs and wants. Among JK’s skills were riding a bicycle without training wheels, walking backwards on a balance beam, dressing himself, brushing his teeth, and buttoning a shirt; JK had good motor skills.
Terese Conrad, a speech pathologist at IOL, noted that JK adapted quickly to communication systems, and she believed that he understood more than he was able to express. In February, 1992, IOL began using facilitated communication with some of its students, and Conrad selected JK as one of her first two students to use facilitated communication.
Facilitated communication is a method of helping an individual produce typewritten material on a keyboard or communication device with the intention of compensating for difficulties in motor control. It gives nonverbal individuals access to an alternative communication system. The technique was developed by Rosemary Crossley in Australia in the 1970’s and introduced to the United States by Dr. Douglas Biklin in 1989. During facilitated communication, the communicator, or speaker, is typically supported above or below the wrist; ideally, the facilitator moves fur ther and further back on the arm or shoulder so that there is less direct contact and eventually no contact, a technique known as “fading.” The facilitator applies backward pressure and centers the speaker after each letter is typed to prevent the speaker from perseveration, or striking the same key again and again. Because facilitated communication is a joint activity, there is the potential for “cuing,” where the facilitator may knowingly or unknowingly anticipate or in some other way be involved in assisting the individual in selecting certain letters.
The technique has not received unanimous support in the scientific community. Some members of the scientific community believe that facilitated communication is not a valid communication, while others think there has not yet been enough research on the technique to prove or disprove its validity. Drs. John Jacobson and Allen Schwartz of the New York State Office of Mental Retardation and Developmental Disabilities, both of whom have conducted research on the technique of facilitated communication, opined that the scientific community has not accepted the validity of facilitated communication because of the absence of scientific research demonstrating its vahdity. Rather, each instance of facilitated communication should be tested for validity. Dr. Henry Marks, the director of the department of psychology at IOL, opined that for some individuals, including JK, facilitated communication is valid.
Several studies reveal that the technique in general has not been validated. A study in which Drs. Jacobson and Schwartz were involved, the OD Heck study, evaluated the use of facilitated communication with 12 autistic individuals, all diagnosed with severe or profound mental retardation. Three conditions were evaluated. In the first condition, the speaker was shown a picture not seen by the facilitator, and the speaker described the picture without the use of facilitated communication. In the second, the speaker was shown a picture not seen by the facilitator, and the speaker described the picture with the assistance of facilitated communication. The third condition involved both the facilitator and the speaker being shown a picture, half the time the same picture and half the time different pictures. The subjects were facilitated at the wrist or hand. A panel of five evaluators voted on whether the speaker s answer comported with what was expected. The study revealed that if the facilitator did not see the picture, the speaker was unable to produce an accurate label. When the facilitator saw a picture, the labels were correct 43% of the time, but half of those labels were accurate for the picture seen by the facilitator and not by the speaker. Though these 12 subjects had been reported to be facilitating at the conversational level prior to the study, none of the subjects were able to validate their communication during the OD Heck study.
Another study in which Dr. Jacobson was involved, the Rome study, evaluated 23 individuals, two of whom had autism (one was legally blind) and all of whom were classified as having severe to profound mental retardation, except one classified as moderately retarded. The speakers were shown a picture of a common everyday object present in their environment and told what it was, outside the presence of the facilitator. The facilitator was then brought in to assist the speaker in naming the object or describing it. This is known as “message passing.” The Rome study produced no communication which was validated, though each subject had three trials in which to perform the task.
Other studies reach similar results. For example, the case study of Carla, a 29-year-old mentally retarded woman, revealed that she was unable to validly answer questions when her facilitator was not able to hear the question or heard a different question. A similar study of eight individuals in Australia was conducted. The subjects were facilitated overhand, except one or two who used head pointers. Accurate results were obtained only when both the facilitator and the speaker heard the same question. Where the facilitator s hearing was blocked and he or she did not hear the question asked, the results were invalid. Two Illinois speech pathologists discovered that for accurate responses to questions, the facilitator must hear the same question as the speaker, the facilitator must know the answer, and the facilitator must be able to look at the keyboard while the speaker is typing.
Other studies suggest that facilitated communication has been validated. A 1992 study in Australia tested the IQ scores of five individuals. The facilitators listened to loud noise through earphones while another person asked the subjects to select certain pictures. The IQ scores of three of the subjects substantially improved through the use of facilitated communication.
Dr. Marks conducted message-passing research at IOL to test the validity of facilitated communication. Eleven students attempted to convey the same message with two different facilitators. Each student selected a word from a list of 50 known words. In the first trial, only one student successfully communicated the same word with the second facilitator. The remaining 10 students were given 12 practice trials of communicating the word with the first facilitator; five of the students had the practice trials on the same day and five had the trials spread out over four days. The students then attempted to convey the practiced word with the second facilitator. One student dropped out. Of the remaining nine students, two of the students who had the practice trials over a four-day period — including JK — successfully completed the task.
JK used various communication devices which had keys with the letters of the alphabet, numbers, and various symbols (like those found on a normal typewriter or computer keyboard). JK was able to use facilitated communication with at least 3 or 4 different facilitators, and he had experience with as many as 10 or 11 facilitators at various times. When Terese Conrad began facilitating with JK, she applied a great deal of backward pressure to his wrist. According to Conrad, JK has poor eye-hand coordination and is impulsive, and he frequently looks away from the selection rather than maintaining eye contact while making the selection, so the backward pressure is necessary to prevent JK from typing until she knows he is looking at all of the selections. By early 1993, Conrad was able to support JK at the forearm or elbow rather than the wrist if JK was calm. As JK moves forward to select a letter, Conrad prevents JK from perseveration on the same key. At the Frye hearing (to be discussed later) on Warden’s motion to suppress facilitated statements, Dr. Marks and Terese Conrad both opined that JK was validly communicating through facilitated communication. However, Dr. Schwartz reviewed JK’s IOL records and disagreed, though he had never observed JK facilitate. Schwartz opined that JK had good motor skills and should not require facilitation to point to a yes-no board.
Among the premises upon which facilitated communication is based is an assumption that the speaker is competent. Dr. Biklin, who introduced the method of facilitated communication in the United States following training in Australia by the technique’s founder, assumes that there is an undetected literacy already present in persons with autism, though this assumption has not been confirmed by scientific methodology. One of Biklin’s premises is that facilitated communication helps individuals compensate for apraxia, or difficulty in controlling motor movements, including difficulty in actually starting to do something independently as well as difficulty in controlling the tongue or lungs and therefore in articulating speech. However, apraxia has not been established as a reason autistic individuals have difficulty communicating.
Biklin recommends that a protocol be followed in instances where abuse is alleged through facilitated communication. There is a potential for misleading responses where short answers are typed which do not fully describe the response intended, so the speaker should be asked to continue with his or her response. A preponderance of yes-no questions should not be asked. If the individual facilitates with several facilitators, facilitation should take place with more than one facilitator concerning the abuse to determine whether the same type of information or the same incident is reported using different facilitators. Other aspects of protocol which should be followed include the facilitator looking away from the keyboard or wearing headphones.
The defendant, Marc Warden, was employed at IOL from March 14, 1989, to June 1, 1992. Warden worked initially on a “relief” basis with JK and then began working with JK as a “traditional” caregiver on March 10, 1992, with responsibilities including residential care. Warden also taught independent living skills, recreational skills, and behavior management.
About three months after JK began using facilitated communication, Conrad received information JK was having problems with his residential case manager (not Marc Warden) concerning JK’s tantrums when the caseworker s pants were off. The tantrums would continue until the case manager put his pants on. Conrad was unsure how to pursue the issue with JK, and she asked Dr. Marks to help interview JK. Facilitating JK at the wrist, Conrad assisted him in responding to questions. Several interviews took place over a period of days. On an Epson Real Voice communicator, JK and Conrad facilitated about an incident of alleged sexual abuse.
The first interview was on May 29, 1992. Dr. Marks asked JK if he liked various individuals he lived and worked with, and JK indicated yes to each. However, when JK was asked if he liked Marc Warden, JK typed NO NO NO. When asked what he disliked about Warden, JK typed DONTASK. On June 1, 1992, Dr. Marks again asked JK about Warden. JK typed HUPMQU. When asked what Dr. Marks could do to help, JK typed STOPMARC-SYONPLTASD. Asked to clarify the last word, JK typed PLEASE. Asked to clarify the third word, JK typed JJSOON. JK then spelled ASKABOUT DUDAD, and then continued typing HUAVE PENIS UANFDHUCECR YOU ATPEOIU PKPPD. In response to a question about what Warden did, JK typed 1FU-KATOA EASY TOPQFUK. JK was asked if that meant that Warden fucked JK and JK typed YES. Asked whether JK asked Warden to stop, JK typed YESI ASK.
The next day, Marks again asked JK what Warden did. JK typed FUKMSE. Asked whether that meant that Warden administered a suppository (which JK received several times a week), JK typed NOQESZBUCBUTT. Asked about washing him, JK typed TAKE RIND PUTINBUTT. JK never clarified what RIND meant. JK then typed NOPENMJIS in response to a question about what JK thought was put in his butt. The next day, JK typed ASK ABOUT FUK. Asked what he meant by fuck, JK typed JUY7ES and then YERS . JK then typed ASK DAD and then ASK DAD MN,:0 (new line) IBUTT K J,OKE (new line) YSDT (new line) I 2HN JL.J,K. Asked what fuck meant, JK typed MUKBUT-THURT. Asked what made.it hurt, JK typed JOK K APENIFE (new line) DSDCFF2. JK then typed HUBWTU BIG IN I PENIS. JK later typed HOMEB IS YOURANSRER, and asked whether that meant home with JK’s father, JK typed NO. Asked if his father hurt him, JK typed NO. Asked who hurt him, JK typed MARK. Asked if Warden touched him, JK typed Y7ES. Asked what Warden did, JK typed DID PENIS HJURT. Asked whose penis was hurt, JK typed MARK and then MARKISLE-DASS. Asked if he was mad at Warden and trying to get back at him, JK typed NO.
The next day, Marks asked JK if he hurt his penis, and JK typed NLO. Asked if someone hurt JK’s penis, JK typed NO. Asked if someone hurt JK’s butt, JK typed YES. Marks responded “very good, Marc” to JK, and asked who hurt his butt, and JK typed BMZZAAFRK. Asked to type the name without extra letters, JK eventually typed MARLK. JK then typed KIKED, and when asked who kicked, JK typed MARKO. Asked who Warden kicked, JK typed MI. Asked if that meant Warden kicked JK, JK typed NNO. Asked the same question again, JK typed YES. Asked whether Warden used his hand to make JK’s butt hurt, JK typed NO. Asked what Warden did use to make JK’s butt hurt, JK typed PYUN IS. Asked what Warden did with his penis, JK typed OPEIKINPENOS, and when asked to respell the first word, JK typed PJUTI9N. Asked what Warden put his penis in, JK typed MY BYYTT. Asked if that meant Warden put his penis in JK’s butt, JK typed YES. Asked if this happened one time, JK typed NONO and then typed K ISSM. Asked if that was kiss, JK typed NO, and then continued typing PENODSA AT A PYTART6. Asked to retype the first word, JK typed PANTS ON PLEUSD. At another session later that day, JK provided no information concerning the incident.
The next day, Marks explained to JK that the following week some investigators would sit in on their interview, if that was all right with JK. JK typed ISO K. Asked if anyone else had hurt him, JK typed I DONTT PCUO, and for clarification of the third word, KMPOW. Asked if anyone else had done what Warden did, JK typed NO, and asked if Warden was the only one who hurt JK that way, JK typed YEQS. When JK was asked what he would like to happen, he typed I WAMTHIMBTPPO JOSTKILL SULK. Asked if that meant he wanted Warden to kill himself, JK typed YES.
On June 10, 1992, JK was asked additional questions by Dr. Marks, using Conrad as the facilitator. Some of the questions were asked at the request of Wichita Police Detective Beeson, who investigated the report of child sexual abuse, and the interview was tape-recorded for Beeson. JK indicated that he knew the difference between the truth and a lie, and he correctly answered several questions by identifying whether a statement was true or false. JK also properly identified body parts from a diagram, typing HAIR, NOSENOSE, MOUTH, BEKLLY, B22PENIS, MM222NEE (OR MNEE), FOOT, and BIUTT. Asked whether someone hurt him, JK typed YES. Asked who hurt him, JK typed KEEP MARK AWAY. Told that Marks meant it when he said he would not let him hurt JK again, JK typed I HOPE SO. Asked whether it was daytime or nighttime when Warden hurt him, JK typed NQWESTUN IS HARD. Asked if it was after dinner, JK typed OSO NO. Asked whether it was after bedtime, JK typed NO (new line) BEFORE BED. Asked in what building the incident occurred, JK typed MY HOUSE. In response to whether that meant his house on the IOL campus, JK typed 2”YGES. Asked how many times Warden hurt him, JK typed 1NO MPORE XMANY. Asked if that meant many times, JK typed YES. Asked when the last time was, JK typed QWWWESTUN HARÜD. Asked if it was on the weekend, JK typed AQDC YES. Asked if it was on a weekday, JK typed GHH006Y. Asked if on a Monday, JK typed YES. Asked who else was there, JK typed BK OY. Asked whether that meant “boy,” JK typed KOY. Asked if that meant Koy, JK’s roommate, JK typed YES. Asked if Warden hurt Koy, JK typed NO. JK also indicated that his clothes were OTFF when the incident occurred. The interview then ended.
On each occasion JK typed about the abuse, Conrad was his facilitator. She did not wear headphones nor were other steps taken to insure she could not hear the questions. Conrad did ask JK if he would convey the information with a facilitator other than herself, and JK refused.
JK’s medical treatment at IOL included extensive use of suppositories due to a distended bowel. No physical evidence was collected from JK after his report of abuse because a physical examination might be traumatic for him and his extensive use of suppositories would possibly interfere with the results of the examination.
JK testified at trial with Terese Conrad as his facilitator. JK used a yes/no board and also a Canon communicator to respond to questions. As with JK’s statements before trial, Conrad did not wear headphones nor were other steps taken to insure she could not hear the questions. In fact, she heard all the questions asked at all times during the proceedings. When JK testified in court, he was not calm and was supported at the wrist.
JK indicated that he knew who Warden was and that he saw the person who hurt him in the courtroom, but he pointed to “no” when asked if he could point to the person who hurt him. Asked if Warden hurt him, JK typed ASS. Asked where he was when Warden hurt him, JK typed GAT FAW, and then he typed FUK when asked to keep trying. Asked if that meant “fuck,” JK pointed to “yes” twice. JK pointed to “no” in response to questions whether Warden fucked his ear, mouth, or toes, and. JK pointed to “yes” three times when asked whether Warden fucked his butt. JK then pointed to “no” in response to questions whether Warden fucked him with his nose, mouth, or a suppository. JK was asked if he knew what a penis was, and he pointed to “yes.” Asked if Warden used his penis to fuck JK’s butt, JK pointed to “yes.” JK also indicated by pointing at “yes” that the incident occurred in Wichita.
Because testimony in the courtroom was traumatic for JK, cross-examination occurred in a room outside the presence of the jury, and the testimony was shown to the jury on closed-circuit television. JK typed that his mother’s name was YTURBEE and his father’s name was STEVE. Asked how many times he had been asked if somebody hurt him, JK typed RAT. When he was asked if Terese Conrad was always with him when he was asked about being hurt, JK typed AT SCHOOL, and when asked if Dr. Marks was always with him, JK typed AFTEN. Asked if he uses the communicator with people other than Conrad, JK responded SOME. Asked when his birthday is, JK typed WAS CIPL WEAKS. Asked if he had a sister, JK typed QWESTUN and then DUM. JK typed ASS when asked if Warden ever had to give him suppositories. Asked what city his mother lived in, JK typed T, and asked if he could tell where his mother lived, JK typed NO. JK’s mother’s last name is Yturbe, his father’s first name is Steve, and JK had had a birthday three weeks earlier.
Wichita Police Detective Beeson interviewed Marc Warden on June 11, 1992. Warden signed a written waiver of his Miranda rights. Warden told Beeson several times that he had engaged in no inappropriate touching with JK. Warden then admitted that a couple of weeks earlier, Warden was taking a shower in the apartment where he was assigned to stay with JK. JK had been put to bed, but while Warden was in the shower JK came into the bathroom to use the toilet. Warden got out of the shower while JK was naked and standing at the toilet urinating, and Warden’s erect penis rubbed against JK’s back as Warden walked behind JK. Warden also stated that he moved his penis up and down JK’s back and pushed it up to JK’s anus but did not penetrate. Warden indicated he knew how much it hurt to be penetrated, and he did not want to hurt JK. Warden did not ejaculate; he then got dressed. Warden also admitted that he would rub JK’s buttocks when administering suppositories, but he did not know why he would do so.
Warden also made an admission to a co-worker at IOL, Holly Miller. Miller testified that Warden told her he was accused of molesting JK. Miller asked Warden if he did it, and Warden told her he did. Explaining what happened, Warden indicated he had fondled JK on one occasion but Warden denied doing the same thing to anyone else. Warden did not describe in detail how he fondled JK. Miller also testified that Warden told her he did not remember his interview with Detective Beeson and that he was under the influence of alcohol when he gave the interview. Detective Beeson testified that Warden did not appear to be under the influence of alcohol or other drugs at the time of the interview.
Warden testified at trial. He testified that Detective Beeson informed him more than once that he was accused of putting his penis in JK’s anus. Warden told Beeson several times that he never did anything inappropriate to JK. During the interview, Beeson asked Warden if he had ever been sexually abused, which upset Warden because he had been abused many times but never told anyone. Warden felt scared and did not want to continue the interview, but Beeson offered to help Warden. Warden admitted that he told Beeson he had rubbed his penis on JK’s anus. Warden testified:
“[Beeson] starts going okay, you’re in the shower, you have an erection, [JK] comes in the bathroom, he’s naked, you see [JK], you get out of the shower, you walked up behind him and you do what. And me, I’m just wanting to get out of diere, I just went along with what he said, I confessed to something I had not done, I told him I rubbed my penis on his butt.”
Warden testified he confessed to something he did not do because he was scared and “wanted to get out of there”; he merely went along with what Beeson wanted to hear. Warden also insisted that his admission to Holly Miller was merely to repeat what he had told Detective Beeson.
The jury found Warden guilty of indecent liberties with a child. The trial court sentenced Warden to a term of incarceration of 3 to 10 years. Warden appealed to the Court of Appeals, and the appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
I. FRYE V. UNITED STATES, 293 F. 1013 (D.C. Cir. 1923)
Prior to trial, Warden sought to suppress JK’s out-of-court statements made through facilitated communication and also to prevent JK from testifying in court through facilitated communication. Warden argued that the technique of facilitated communication has not met with general acceptance within the scientific community and therefore statements made through facilitated communication do not satisfy Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The State argued that Frye does not apply because at issue is simply communication, not scientific evidence; the issue is whether JK was validly communicating. The State suggested that JK’s use of facilitated communication had been validated. Moreover, the State reasoned that JK’s out-of-court statements would be admissible under the child hearsay rule, K.S.A. 60-460(dd), even if he did not testify.
The trial court held extensive hearings concerning this issue. Among the evidence received was testimony by Drs. Jacobson, Schwartz, and Marks as detailed above. The testimony-revealed that the scientific community has not generally accepted the validity of facilitated communication.
The trial court ruled that Frye did not apply. The court found that the issue was whether JK was communicating. Although the trial court did not observe JK’s use of facilitated communication first-hand prior to trial, the court stated:
“[W]e’ve had a great deal of scientific testimony here and I don’t want to get lost in jargon. To me the DSM-III is an extremely useful tool in categorizing people but people are not their labels. [JK] is more than simply a diagnosis, he is what he is, the diagnosis is the nearest pigeonhole we can find for him.
“I don’t think that’s conclusive, although certainly the diagnosis of acute autism and retardation is perhaps helpful to experts in discussing him as compared with others but I find that he is more than his diagnosis. There is indication that he communicates. And this is before this incident and his communications pointing to pictures, his ability to show affection, and the demonstration of tire technique of backward pushing merely keeping him off the keyboard is indicative of other than direction or cuing.
“But that having been said there are things about the particular incident which are validating. That the facilitator did not previously know that [JK] was going to make an accusation of abuse, his — the filings typed by him with the aid of his facilitator seems to speak for themselves and there is some detail corresponding to the statements that have been proffered with regard to the penis and the butt. And some independent validations, pointing to names and things like that.
“I believe that there is enough — I’m going to find that there’s enough apparent reliability that these things may be shown to the jury if [JK] remains unavailable. I also believe and •— that juries are capable of listening to the arguments that [defense counsel] has made about the reliability of this thing.
“The Court is not God. I think that there are many tilings to be argued back and forth about this as to how rehable [JK’s] communications are. I am willing to place the faith in the jury, let them hear the evidence and make the argument to them.”
At trial, Warden renewed his objection to JK’s statements using facilitated communication. The trial court renewed its finding that Frye did not apply. The trial court did prohibit testimony interpreting JK’s typed statements, which could fall within the realm of Frye as scientific testimony. Rather, only the actual letters typed by JK were admitted.
The general rule enunciated in Frye prohibits expert testimony concerning a scientific principle or discovery unless the principle is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye, 293 F. at 1014. This court has adopted the Frye test concerning the admissibility of scientific evidence. See State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947).
“The Frye test requires- that, before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as rehable within the expert’s particular- scientific field. If a new scientific technique’s validity generally has not been accepted as rehable or is only regarded as an experimental technique, then expert testimony based on its results should not be admitted into evidence.” Witte, 251 Kan. 313, Syl. ¶ 3.
The party seeking to admit the scientific opinion has the burden of satisfying the Frye test. See Witte, 251 Kan. 313, Syl. ¶ 4. The rationale behind the Frye test is as follows:
“ ‘Frye was dehberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles. . . . Several reasons founded in logic and common sense support a posture of judicial caution in this area. Lay jurors tend to give considerable weight to “scientific” evidence when presented by “experts” with impressive credentials. We have acknowledged the existence of a “. . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.’ ” [People v. Kelly, 17 Cal. 3d 24, 31-32, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976).]
"[A] jury of laymen should not, on a case-by-case basis, resolve a dispute in the scientific community involving the validity of a new scientific technique. Courts should be reluctant to resolve the disputes of science. It is not for the law to experiment, but for science to do so. Without the Frye test, juries would be compelled to make determinations regarding the validity of experimental or novel scientific techniques. As a result, one jury might decide that a particular scientific process is reliable, while another jury might find that the identical process is not. Such inconsistency concerning the admissibility of a given scientific technique or process in criminal cases would be intolerable.” State v. Washington, 229 Kan. 47, 54, 622 P.2d 986 (1981).
See Witte, 251 Kan. at 323.
The Frye test is applicable to physical scientific evidence as well as to testimony concerning a psychiatric diagnosis. See State v. Marks, 231 Kan. 645, 654, 647 P.2d 1292 (1982). Its general acceptance rule has been applied to a variety of scientific evidence in Kansas. See, e.g., Witte, 251 Kan. 313 (horizontal gaze nystagmus test); State v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991) (DNA profiling evidence); State v. Miller, 240 Kan. 733, 732 P.2d 756 (1987) (identification of marijuana); State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986) (battered woman syndrome); State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985) (events recalled subsequent to hypnosis); Marks, 231 Kan. 645 (rape trauma syndrome); Washington, 229 Kan. 47 (multisystem method of enzyme analysis); State v. Parson, 226 Kan. 491, 601 P.2d 680 (1979) (blood alcohol tests); Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982) (HLA test for paternity). However, the Frye test has been held inapplicable to the use of a narcotics dog and to testimony by a “gang expert.” State v. Barker, 252 Kan. 949, 850 P.2d 885 (1993); State v. Tran, 252 Kan. 494, 847 P.2d 680 (1993).
The admissibility of facilitated communication is an issue of first impression in Kansas. Only four published decisions in the United States address the admissibility of facilitated communication. All hail from New York. Two of the cases are from the family court and one was a county court case. The fourth is from New York’s equivalent to our Kansas Court of Appeals.
The first case addressing the technique was Matter of DDS v. Mark S., 156 Misc. 2d 393, 593 N.Y.S.2d 142 (Fam. Ct. 1992). Mark S. involved the admissibility of a 16-year-old nonvocal autistic child’s out-of-court statements concerning abuse by her father in an action to remove the child from the home. The court framed the issue as to whether the child had actually made a statement. The court refused to analogize facilitated communication to other simultaneous transmissions from one form of English, such as American Sign Language, to spoken English because the validity of the method of communication has not been established. 156 Misc. 2d at 406. Noting that the statement could not be admitted without testimony concerning the technique used to acquire the statement, and comparing facilitated communication to hypnotic recall, polygraph tests, and trauma syndrome evidence, the court held that the Frye test applied. 156 Misc. 2d at 399-401. The relevant scientific community included physicians, psychologists, psychiatrists, educators, neurologists, and speech and language pathologists. 156 Misc. 2d at 403. The court held that facilitated communication “has not passed from the stage of experimentation and uncertainty to that of reasonable demonstrability.” 156 Misc. 2d at 405.
Matter of M.Z., 155 Misc. 2d 564, 590 N.Y.S.2d 390 (Fam. Ct. 1992), was decided the day after Mark S. As in Mark S., at issue were the out-of-court statements made through the use of facilitated communication, this time by a 10-year-old partially verbal child afflicted with Down’s syndrome. The court acknowledged its prior ruling permitting out-of-court statements made using facilitated communication, but pointed out that the previous use was in a dispositional, rather than a factfinding, proceeding and that a fair amount of interpretation was necessary with respect to the meaning of the letters typed by the child. 155 Misc. 2d at 577. The court concluded that the party seeking to admit the facilitated statements had not made a prima facie case as to the admissibility of testimony based on facilitated communication by a child with Down’s syndrome. One factor mentioned in the court’s decision was the absence of evidence of experience using facilitated communication with children diagnosed with Down’s syndrome. 155 Misc. 2d at 578. The court also noted the absence of evidence concerning empirical studies of the validity of the communications or the degree to which they were subject to suggestion or interpretation and that the experts who did testify acknowledged that other experts disagree with the assumptions upon which facilitated communication is based and call for more research to test its reliability. 155 Misc. 2d at 575.
Several months later, two other cases involving facilitated communication were decided within days of each other. People v. Webb, 157 Misc. 2d 474, 597 N.Y.S.2d 565 (Co. Ct. 1993), considered the testimony of a child victim using facilitated communication during a grand jury proceeding. During the grand jury testimony, the facilitator was equipped with headphones through which “white noise” was produced, so the facilitator was unable to hear the questions asked of the child. 157 Misc. 2d at 476. The facilitator was sworn to assist the witness with his answers without adding to, subtracting from, or changing in any way the testimony of the witness. 157 Misc. 2d at 479. The court noted the importance of ascertaining that the witness is able to understand the questions asked and that the witness’ answer is not guided, controlled, suggested, or changed by the facilitator. 157 Misc. 2d at 476. The Webb court distinguished Mark S. and M.Z. because those cases involved out-of-court facilitated statements, whereas the facilitated testimony in the grand juiy proceeding was live and the jurors actually observed the witness and the facilitator and saw and heard the communication device produce the witness’ responses. The court stated, “This mechanism of communication is a relatively new one for transmission of the answer of a witness. However, it has not been shown thus far that this process involves any interpretation or substitution of testimony by or from a third party.” 157 Misc. 2d at 477-78. The court did not apply the Frye test. However, the court recognized that “[i]f, contrary to the Court’s impression from review of the Grand Jury minutes, this mode of communication does involve reliance upon scientific conclusion, then there may well be serious questions as to whether those procedures enjoy sufficient acceptance in the scientific community which uses them to justify their reception and use in evidence here.” 157 Misc. 2d at 478. The court therefore planned a hearing in limine prior to trial of the defendant to inquire further into the technique of facilitated communication, with the burden on the State “to show the nature of the communicative process and its claimed normality ás a direct rendering of the words of the witness.” 157 Misc. 2d at 478-79.
Finally, in Matter of Luz P., 189 App. Div. 2d 274, 595 N.Y.S.2d 541 (1993), New York’s court equivalent to the Kansas Court of Appeals considered the use of facilitated communication in a child protective proceeding. Luz, an 11-year-old nonverbal girl diagnosed with autism and mental retardation, conveyed through facilitated communication that her parents were sexually abusing her. Prior to a factfinding hearing, the trial court ordered a Frye hearing to determine the scientific reliability of facilitated communication and placed the burden on the Department of Social Services (DSS). The court then dismissed the action after DSS requested a continuance to obtain expert witnesses from out of town in an attempt to comply with Frye. 189 App. Div. 2d at 277.
The appellate court reversed, holding:
“The test for the court in cases such as these is a pragmatic one. Can the interpreter, or in this case the facilitator, effectively communicate with the witness and reliably convey the witness’s answers to the court? A determination of these questions does not require expert testimony. To the contrary, the proffered facilitated communication lends itself to empirical rather than scientific proof.” 189 App. Div. 2d at 279.
In holding that the Frye test does not apply, the court said:
“[S]ince the ability of an interpreter, translator, ‘signer, or anyone else who transmits the testimony of a witness is not based on a scientific theory, any application of the Frye test is inapposite. Clearly no Frye test was appropriate or necessary before a Spanish interpreter was provided for Luz’s parents, die respondents in this proceeding. Indeed, there was not even an attempt made on the record to determine which dialect of Spanish the respondents spoke. It was enough that the interpreter and the respondents could understand each other and that the interpreter swore to translate accurately. There is no present requirement, nor has it ever been considered necessary in the past, to establish tiiat translation from Spanish to English and vice-versa must have a scientific basis. Inasmuch as such a preliminary showing is not necessary with regard to the interpreter and the respondent parents, there is similarly no basis for concluding that the presentation of expert scientific evidence is necessary with respect to Luz’s facilitator, who would only assist her in communicating her responses to the court and would not translate any of the questions put to Luz.” 189 App. Div. 2d at 280-81.
The appellate court further held that before admitting statements made using facilitated communication, the trial court must satisfy itself that the testimony as transmitted by facilitation is in fact the testimony of the autistic child, uninfluenced by the facilitator, and also that the witness understands the nature and obligations of the oath.
It is our understanding that the Luz case was returned to the trial court and that the trial court found statements made using facilitated communication inadmissible after conducting tests to validate the facilitated communication. The case is again on appeal.
We are not persuaded that statements produced through facilitated communication are scientific evidence subject to the Frye test. Facilitated communication is just what its name implies: a method of communication. Unlike the tests revealing that JK is autistic and mentally retarded, which require scientific interpretation of JK’s skills and behaviors, facilitated statements require no scientific interpretation. The device used produces a typewritten tape of what is entered; the content of the statements are capable of interpretation by lay jurors just as any other form of written English. The trial court here ruled that witnesses would not be permitted to interpret JK’s responses as shown on the tape and as pointed to on the yes/no board; that was a task left to the jury. Because facilitated communication requires no scientific testimony, the Frye test is inapplicable. To admit statements made using facilitated communication, a party need not show the technique has achieved general acceptance in the scientific community.
However, when statements made using facilitated communication are admitted at trial, certainly the credibility of those statements and the weight to be given them are issues for the finder of fact, just as with other types of testimony. See K.S.A. 60-420 (any party may introduce extrinsic evidence concerning any other matter relevant upon the issues of credibility). Testimony challenging the validity of such communication is admissible. Such testimony may include evidence of the technique of facilitated communication, its origins, and its acceptance by the scientific community in which it is used. The trial court, after holding that Frye did not apply to the admission of facilitated statements, permitted evidence challenging the validity of the facilitated communication process itself. This was proper.
II. PROTOCOL
Immediately before JK’s testimony at trial, Warden asked the trial court to adopt a protocol similar to that suggested by Dr. Biklin of using a facilitator other than Terese Conrad for purposes of JK’s testimony to insure its validity. Alternatively, Warden asked the court to implement other protocol suggestions such as ordering Conrad to divert her eyes from the communication device and to wear earphones that played music so she could not hear the questions propounded to JK. The State objected, pointing out that the request for protocol was made for the first time immediately prior to JK’s testimony and that using an alternative facilitator or earphones would place JK in a situation with which he was not familiar. The trial court ruled as follows:
“As to the protocol by Mr. Bildin, first of all, Mr. Bildin is one of tire leaders in this field; but on the other hand, it’s a pretty new field, in fact it is so new that I have not permitted people who might otherwise be called experts to testify as to their conclusions about what [JK] is saying for the very reason that I really think this jury is in a position where they may very well be as able to tell what he means as the expert because there isn’t a consensus on this thing.
“[JK] is an individual, I think as’ an individual we have evidence on the record that familiarity and predictability are essential if he is to have any chance at all of communicating. And for that reason I think there’s abundant evidence that to change the protocol at this time is to almost make it a worthless exercise to attempt it.
“I am therefore going to go ahead and permit [JK] to testify under the, quote, protocol that we’ve already been using here or the method that we’ve started using . . . .”
Warden now argues that the trial court erred in failing to implement the protocol he requested. He points out the dangers associated with facilitated communication, including the danger of facilitator cuing. Warden likens facilitated testimony to hypnotically refreshed testimony because both are inherently suggestive procedures. Frye renders inadmissible statements made under hypnosis when offered for the truth of their content; a witness may only testify as to events recalled prior to hypnosis. See Haislip, 237 Kan. at 479-482. However, a defendant, in keeping with the right to testify on one’s own behalf, the right to conduct a defense, and the right to due process, may testify even as to events recalled only after hypnosis if the defendant proves that certain safeguards during hypnosis were followed. State v. Butterworth, 246 Kan. 541, 553-54, 792 P.2d 1049 (1990). Warden reasons that, as with a defendant’s posthypnotic recollections, facilitated communication is subject to following a strict protocol to prevent or minimize cuing or facilitator influence. Warden claims that the trial court’s failure to implement the protocol deprived him of a fair trial.
The State argues that the trial court did not abuse its discretion in refusing to implement the requested protocol. The State reasons that Warden’s request to implement the protocol was untimely. It also asserts that under Butterworth, posthypnotic recollections may be admitted in the trial court’s discretion even when all of the procedural safeguards are not followed (Butterworth, 246 Kan. at 555-56.); thus, facilitated statements may be admitted in the trial court’s discretion even though the recommended protocol is not followed. Moreover, the State suggests that it is for the jury to assess the weight of facilitated statements. The jury was aware that Terese Conrad was the only facilitator who worked with JK when he told of the abuse, though the recommended protocol was to use more than one facilitator, and the jury was aware Conrad did not wear headphones during JK’s testimony, though that safeguard was also recommended. The State also reasons that the jury was presented with evidence tending to show JK’s statements were not the product of cuing: Conrad testified she had no knowledge of the abuse before JK began typing about it; JK exhibited other unusual behavior before describing the abuse (he threw a tantrum when his caregiver had his pants off); the spelling, grammar, and word choice in JK’s statements were inconsistent with Conrad’s; Conrad had no vested interest in the statements; Conrad facilitated with a student who retracted a previous statement made to another facilitator accusing Warden of abuse; Conrad facilitated with another student who gave a statement to Conrad that Warden had never abused him; and JK’s statements were validated by Warden’s confession. The State contends that JK’s statements were not so unreliable that the trial court abused its discretion in admitting the statements into evidence.
The admission of evidence, and the manner in which it is received, lies within the sound discretion of the trial court. See State v. Vaughn, 254 Kan. 191, 204, 865 P.2d 207 (1993); State v. Tran, 252 Kan. 494, Syl. ¶ 5, 847 P.2d 680 (1992); State v. Friberg, 252 Kan. 141, Syl. ¶ 5, 843 P.2d 218 (1992). Our standard of review of the trial court’s failure to implement the requested protocol, therefore, is whether the trial court abused its discretion. Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991).
None of the recommended protocol was followed here. This is not a case of substantial compliance or even minimal compliance. Terese Conrad was not even directed to divert her eyes from the communication device as she helped JK type his responses. However, Warden has not shown that the trial court abused its discretion in failing to implement the requested protocol.
The better practice would be to implement the recommended protocol during a witness’ in-court testimony by means of facilitated communication. Such a protocol would go a long way toward protecting against the potential for facilitator influence or cuing. However, there was testimony here that familiarity and predictability were essential if JK was to be able to communicate. Warden’s request to implement the protocol was made immediately prior to JK’s testimony and was untimely. Warden was aware the State intended to present JK’s testimony through facilitated communication, and Warden had ample opportunity prior to trial to request that the recommended protocol be followed. In addition, the jurors were aware of the recommended protocol and could observe for themselves that it was not followed. The failure to follow the recommended protocol goes to the weight of JK’s testimony, not to its admissibility. The trial court did not abuse its discretion in failing to implement the recommended protocol during JK’s testimony because the request was untimely.
Warden also points out in his discussion of this issue that Terese Conrad was not sworn as an interpreter at the time of JK’s testimony. K.S.A. 75-4351 provides for appointment of a qualified interpreter for persons whose primary language is one other than English or who are deaf or mute or both. K.S.A. 75-4354 states: “Every interpreter appointed pursuant to the provisions of K.S.A. 75-4351, before entering upon his or her duties, shall take an oath that he or she will make a true interpretation in an understandable manner to the person for whom he or she is appointed, and that he or she will repeat the statements of such person in the English language to the best of his or her skill and judgment.” Terese Conrad assisted JK in giving his testimony. She was not appointed as an interpreter nor was she placed under oath.
Unlike interpreters for the deaf, mute, or persons whose primary language is one other than English, Conrad was not required, or permitted, to interpret JK’s responses. JK’s testimony was typed on a Canon communicator, a device which prints the responses in English on a strip of paper. Conrad merely stated in spoken English what JK said in typed English. The trial court did not permit Conrad to interpret JK’s responses; Conrad was only permitted to read JK’s responses letter by letter. Warden did not object to this procedure. Conrad should have been given an oath that she would repeat JK’s responses in spoken English to the best of her skill and judgment, including an oath not to influence JK’s responses as she assisted him in typing. See Luz P., 189 App. Div. 2d at 281. However, because Warden did not object to the failure to so appoint her and place her under oath, the failure to place her under oath is not reversible error.
III. HEARING TO DETERMINE JK’s COMPETENCY
Warden also argues that the trial court should have made a determination of JK’s competency before permitting him to testify. The trial court did make such a finding, though not in the format Warden requested.
Prior to trial, during argument at the Frye hearing, Warden argued to the trial court that there was no evidence that JK was cognitive. Warden asked that the trial court question the validity of facilitated communication because it has not been generally accepted within the scientific community. He also asserted that to admit JK’s out-of-court statements under the child hearsay exception, K.S.A. 60-460(dd), required a finding of reliability, a finding Warden argued the court could not make because the technique of facilitated communication has not been generally validated. Pointing out that JK is nonverbal, knows only part of the alphabet, and independently signs a limited number of signs, Warden suggested that the reliability of JK’s communication is highly suspect and that there was a question whether JK is really communicating and, if so, whether he understands what he is communicating.
The trial court found that there was an indication JK was able to communicate by pointing to pictures, by showing affection, and by using facilitated communication with only backward pressure, which is indicative of other than direction or cuing. The court also found the incident was validated by the facilitator’s lack of knowledge of the incident. The court found “enough apparent reliability” that even if JK should be unavailable as a witness at trial, his out-of-court statements were admissible.
Immediately prior to JK’s testimony, when requesting implementation of the protocol described above, Warden asked the trial court to determine if JK was unavailable as a witness for purposes of the child hearsay statute, K.S.A. 60-460(dd). His counsel stated:
“Unavailable, as I understand it, might also mean there’s some question as to the witness’ competence.
“So first of all, at this point in time I’m asking the Court to enter a ruling as to whether [JK] is unavailable, because it’s our position that is if he is in fact unavailable he should not be allowed to testify before the members of the jury because he’s not competent as a witness. . . . And we’re at the point in time right now we need to determine if this young man is in fact unavailable, in our opinion, before we place him before the jury.”
The State argued that the only way to determine if JK was unavailable was to place him before the jury because the factors of courtroom testimony would influence whether JK would be able to communicate in that situation. Warden’s counsel responded that the nature of the child hearsay statute contemplates an availability hearing outside the presence of the jury.
The court’s ruling was as follows:
“I am not going to rule at this time on the availability of [JK], It is clear to the Court that independent of questions of competency what we’re talking about is a physical capability, given [JK’s] handicaps. And by way of pretrial hearing I don’t think we could predict whether we tried once or 50 times whether he’s going to be able to do it under this particular setting.”
JK did testify at trial. Warden acknowledges that the provisions of the child hearsay statute, K.S.A. 60-460(dd), did not come into play. However, Warden contends that if JK was not capable of communicating, he was not available or competent to testify. Thus, the trial court should have determined whether JK was competent and was validly communicating before permitting him to testify. Warden reasons that there was a dispute about whether JK was capable of communicating: JK had no verbal speech, he was mostly unresponsive to verbal directions, he had limited receptive language, and he had no expressive language; he was diagnosed as severely mentally retarded; and Dr. Schwartz opined at the Frye hearing that JK was not providing authentic communication.
Warden also suggests that JK was not placed under oath before giving his testimony and that the State made no motion to find JK competent in lieu of an oath. K.S.A. 60-418 states, “Every witness before testifying shall be required to express his or her purpose to testify by the oath or affirmation required by law.” The transcript of trial initially prepared by the court reporter indicates only that JK, “called as a witness, testified as follows.” However, the court reporter filed an errata sheet indicating that JK, “called as a witness, having been duly sworn, testified as follows.” Warden has filed a motion to strike the errata sheet because the court reporter’s notes of trial had no mention an oath was given, though the court reporter did recall that the oath was given. A videotape of trial made by a television station and included in the record on appeal upon the State’s motion reveals that before JK testified, an “oath” was given as follows. A woman’s voice (believed to be the court reporter) asked two questions: “Do you know that you’re here today to tell the truth?” “Do you promise the Judge that that’s what you’re gonna do?” Following each of these questions, one can see on the tape that Terese Conrad’s right arm moved as if she was facilitating a response. However, the tape does not reveal what the response was, nor can the yes/ no board be clearly seen on the tape. Warden did not object to the form of the oath given to JK, nor does the trial record reflect any allegation that an oath was not given. No evidence is offered by defendant that an oath was not administered. We do not find reversible error based on the record before us.
Under K.S.A. 60-407, every person is qualified to be a witness and no person is disqualified as a witness except as otherwise provided by statute. K.S.A. 60-417 provides for disqualification of witnesses as follows:
“A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning tire matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth.”
K.S.A. 60-408 sets forth the rules under which the qualification of a witness is to be decided: ‘When the qualification of a person to be a witness ... is in issue, the issue is to be determined by the judge .... The judge may hear and determine such matters out of the presence or hearing of the jury .... But this section shall not be construed to limit the right of a party to introduce before the jury evidence relevant to weight or credibility.” The determination of disqualification need not occur outside the presence of the jury except in the instance of an accused’s confession in a criminal case. K.S.A. 60-408.
Warden did not specifically move to disqualify JK as a witness under K.S.A. 60-417 prior to or during trial. His argument was that in-court and out-of-court statements made using facilitated communication were inadmissible because the premises upon which facilitated communication is based have not achieved general acceptance in the scientific community, i.e., that the statements do not meet the Frye test. He also argued that JK’s pretrial statements were not rehable and therefore were inadmissible under the child hearsay statute if JK was unavailable as a witness. Underlying all of Warden’s arguments to the trial court was the suggestion that JK was not validly communicating. Looking at Warden’s arguments in totality, Warden has properly preserved his competency argument for appeal.
Warden reasons that JK’s competency and availability had to be determined prior to JK testifying. He argues that the trial court should have made a threshold determination of JK’s competency and availability prior to JK’s testimony. The trial court did make such a determination. In relation to the admissibility of JK’s pretrial statements under the child hearsay statute should JK be unavailable to testify at trial, the trial court found that JK’s statements met a threshold of reliability warranting their admission at trial even if JK was unavailable. Implicit in this finding of reliability is a finding that communication occurred and that the speaker is competent. The trial court also specifically noted that the jury could hear for itself Warden’s arguments as to the reliability of facilitated communication. The trial court did decline to rule on JK’s availability until he attempted his testimony; this ruling was proper because, as noted by the trial court, there was no way to anticipate how JK would react to presenting testimony at trial and the determination of JK’s competency need not take place outside the presence of the jury. Moreover, after JK’s testimony at trial on direct examination, the trial court did refuse to disqualify JK as a witness even though he was unable to respond to cross-examination at that time. Cross-examination was conducted by closed-circuit television at a later point in the trial.
Warden’s real argument seems to be that the trial court erred in determining that JK was validly communicating and in the process by which the trial court so ruled. He points out that in Luz P., 189 App. Div. 2d at 279-80, the court ordered a hearing to determine whether Luz was capable of communicating by facilitation:
“[T]he test proposed by the County Attorney, whereby the court could question Luz outside the presence of the facilitator and tiren hear her responses through facilitated communication, should adequately establish whether this is a reliable and accurate means of communication by Luz. Fact-specific questions can be devised which should demonstrate whether the answers are subject to the influence, however subtle, of the facilitator. If the court is satisfied from this demonstration that the facilitator is ‘qualified’ to transmit communications from Luz to die court, then the facilitator may be appointed as an interpreter . . . .”
We express doubts about the procedure by which the trial court determined that JK was able to validly communication through facilitation. The court did find evidence that JK was able to validly communicate through other means, such as by pictures and by showing affection. The trial court also pointed out other factors supporting a finding that JK’s facilitation was valid, such as the fact that the facilitator had no prior knowledge that JK would make an accusation of abuse. Moreover, the validity of JK’s facilitation is supported by Warden’s confession and admission, and there was testimony that research conducted at IOL revealed that JK was able to validly communicate through facilitation. However, the trial court made its preliminary ruling without ever having observed JK facilitate and without conducting an independent evaluation such as that recommended in Luz P. During JK’s testimony no steps were taken to minimize the potential of facilitator influence or cuing. Moreover, JK’s facilitator was not appointed as an interpreter and placed under oath to transmit JK’s statements without influencing them. See K.S.A. 75-4354.
JK was able to sign yes or no. He does so in the same manner as the general public by shaking his head up and down for yes and from side to side for no. We note from the videotapes thatJK was clearly able to sign “hello” and to request a drink of water (which he did on two occasions). Instead of signing for yes or no, JK used a yes/no board and was facilitated in so doing. JK should have been allowed, indeed required, to independently sign yes and no. Where a person is physically able to do so, the yes/no board and communication device should not be held by the facilitator arid should be placed on an immovable surface. We note, however, that no objection was ma.de to JK not independently signing yes and no or to the facilitator holding the yes/no board and communication device with one hand and facilitating with the other.
Certainly a person should not be disqualified as a witness because of a disability. On the other hand, a witness in a criminal case must be competent to testify and able to communicate. The method of communicating must be reliable when applied to the witness testifying. Thus, an evaluation must be conducted on a case-by-case basis because the validity of facilitated communication for one person does not mean that another is also able to validly facilitate. The court should examine the witness to make a threshold finding of validation. As suggested in Luz P., the witness should be questioned outside the presence of the jury to determine competency and ability to communicate. The facilitator should listen to “white noise” or music through headphones while the witness is being questioned. Fact-specific questions should be asked to insure the answers are not subject to facilitator influence or cuing. Tests should be conducted sufficient to convince the trial judge the witness can communicate and is free of any influence of the facilitator. Moreover, the trial court may also consider other evidence bearing on the validity of the witness’ ability to communicate through facilitation, including evidence of any research which has been conducted as to the validity of the witness’ facilitation. If the trial court is satisfied that the witness’ ability to communicate through facilitation is validated, the court may permit the witness to testify. This is a matter for the discretion of the trial judge.
Procedures should also be followed during the witness’ testimony using facilitated communication. Steps should be taken to minimize the potential for facilitator influence or cuing, including the headphone technique described above or having the facilitator look away from the communication device. The witness should give independent responses, without facilitation, where possible, such as by using signs or other communication if the witness has such a capability. (For instance, in this case JK could have used anatomical drawings to identify body parts and explain what happened.) The witness must be sworn. The facilitator should be appointed as an interpreter and placed under oath.
New of these procedures were followed here. However, this failure does not require reversal. A witness is presumed competent to testify, and the burden of establishing incompetency rests with the party challenger. State v. Colwell, 246 Kan. 382, Syl. ¶ 5, 790 P.2d 430 (1990). The disqualification of a witness lies within the discretion of the trial court. 246 Kan. at 388.
Warden has not shown the trial court abused its discretion. There is evidence in the record that JK was capable of using communication systems other than facilitation, including signing and using a picture communication book, showing some cognitive ability. There is also evidence that JK’s communication by facilitation was validated by research conducted at IOL. Warden stresses the fact that JK was diagnosed with autism and mental retardation. Tests showed that JK had some skills in the five-year-old range, though his mental ability was generally understood to be in the two- to three-year-old range. The diagnosis of mental retardation was not made using facilitated communication. One theory of autism and why facilitated communication works with autistic individuals is that autistics have a hidden literacy which has not been discoverable because these individuals have had no means to communicate their intelligence. If JK is able to validly communicate by facilitation, there is of course a question about the validity of the tests showing him to be severely or profoundly mentally retarded.
The trial court considered all of this information in deciding that JK’s use of facilitated communication was reliable. Warden confessed to the crime, and he made an admission to a co-worker, though he recanted both at trial. More importantly, the jury observed for itself JK’s testimony through facilitated communication and could decide what weight, if any, to give his testimony. The jury heard testimony concerning the potential for facilitator influence or cuing and the lack of quantitative research validating any facilitated communication. It cannot be said that no reasonable person would agree with the trial court’s ruling permitting JK to testify.
IV. ORDER IN LIMINE
Prior to trial, Warden made a motion in limine to preclude testimony concerning a suicide attempt by Warden. The court granted the motion. During Holly Miller’s testimony at trial, she indicated that she visited Warden in the hospital. The prosecutor asked Miller what happened while she was there, and Miller testified, ‘Well, I went in and we started talking and I asked him what happened, why he was there. He told me he tried to kill himself and he showed me the cuts on his wrist, I asked him why and —”
Warden objected and moved for a mistrial based on the breach of the order in limine. The State indicated that the breach was unintentional and that Miller’s testimony concerning the suicide attempt was unexpected. The trial court denied Warden’s motion for a mistrial, finding that the violation was not intentional and not so prejudicial as to require a mistrial. The court stated that the “answer naturally got into it was the cuts on the wrist from which one could infer some attempt at one’s own life, although we stopped it at that point. . . . [W]e haven’t said there was an attempt on the life, we haven’t gone into it.” The court further indicated that the jury would not necessarily associate a suicide attempt with guilt or innocence; the accusation itself would be extremely upsetting. The court instructed the juiy that Miller had given an answer of a personal matter the trial court had deemed not relevant to the case, and the jury was instructed to disregard the last “couple” of Miller’s answers. Miller then testified that when she visited Warden in the hospital, he made an admission that he had committed the offense against JK. There were no further references to Warden’s suicide attempt by Miller or any other witness.
On appeal, Warden points out that, contrary to the trial court’s statement, Holly Miller did testify that Warden told her he tried to Mil himself. Warden cites State v. Massey, 242 Kan. 252, 747 P.2d 802 (1987), and argues that the trial court should have granted a mistrial under K.S.A. 22-3423(1)(c), which permits the court to grant a mistrial where prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. He asserts that the mention of his suicide attempt was highly prejudicial; the implication of this testimony was that Warden had attempted suicide because he was guilty.
A two-part test evaluates alleged violations of a motion in limine. First, there must be a determination whether there was a violation of the order in limine. Second, if the order in limine is violated, there must be a determination whether the testimony elicited in violation of the order substantially prejudiced the defendant. See State v. Bowen, 254 Kan. 618, Syl. ¶ 2, 867 P.2d 1024 (1994). The burden is on the defendant to show he or she was substantially prejudiced. Massey, 242 Kan. at 264. Where a trial court denies a motion for mistrial under K.S.A. 22-3423, as occurred here, this court’s standard of review is abuse of discretion. See Bowen, 254 Kan. 618, Syl. ¶ 5; Massey, 242 Kan. at 264. Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. See State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991).
Here, the trial court determined that there was a violation of the order in limine. The State concedes that Holly Miller’s testimony that Warden tried to kill himself was in breach of the order in limine. The trial court, however, determined that Warden was not substantially prejudiced by the testimony, giving two reasons. First, the violation was not intentional, and second, the testimony was subject to more than one inference. The trial court instructed the jury to disregard the testimony.
In Massey, cited by Warden, the State theorized that the defendant placed a bedspread over his wife before shooting her in the head to prevent gunpowder burns around the entrance wound. The defendant contended the gun discharged accidently while he was experiencing a seizure, implying that there were no powder bums around the entrance wound because the gun discharged from more than two feet away. The bedspread had a hole in it, but no tests were conducted to determine whether it was a bullet hole. The court issued an order in limine barring witnesses from testifying that the hole was a bullet hole. 242 Kan. at 262. One of the State’s witnesses testified in violation of the order in limine that the bedspread appeared to have a bullet hole. After Massey’s objection and motion for mistrial, the prosecutor elicited from the witness that no tests had been conducted to determine how the hole was made in the bedspread. The court then found that the violation was not intentional and denied the motion for mistrial. The court did not instruct the jury to disregard the testimony. 242 Kan. at 263-64. In closing argument, the State reminded the jury that the lack of powder bums on the victim’s wound may have been caused by a barrier inserted be tween her head and the gun and that there was a hole in the bedspread though there was no proof what caused the hole. 242 Kan. at 264. This court concluded the trial court abused its discretion in determining that Massey did not suffer substantial prejudice and in failing to grant a mistrial. 242 Kan. at 265.
Massey is distinguishable from the case at bar. In Massey, the trial court did not instruct the jury to disregard the inadmissible statements of the witness. Though the State elicited from the witness that he had not conducted tests to determine the cause of the hole in the bedspread, in closing argument the State asked the jury to infer that the hole was a bullet hole. Here, conversely, the trial court instructed the jury to disregard the last several answers of the witness. The limiting instruction was done in a way that did not highlight the inadmissible testimony. Moreover, there was no other reference during the trial to Warden’s suicide attempt. Warden argues that the jury could draw only one conclusion from Miller’s testimony that he had attempted suicide: He attempted suicide because he was guilty of the charges. The trial court, however, found the testimony susceptible to another inference: The mere fact of being charged with the offense could have led to a suicide attempt. Warden has not shown that the trial court abused its discretion in holding that he was not substantially prejudiced by the breach of the order in limine. The testimony itself was not so prejudicial that no reasonable person would fail to grant a mistrial. There was no abuse of discretion.
Affirmed.
Holmes, C.J., and McFarland, J., dissenting.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, James L. Hunt, from his conviction for second-degree murder. He claims error concerning the self-defense instruction and the witness credibility instruction, in being sentenced as a habitual offender (third offense), in the failure to provide allocution, and in the imposition of a sentence of 45 years to life.
The victim, Nehemiah Martin, lived with his girlfriend and her children in the same apartment building as the defendant. Defendant and Martin were drinking companions.
Martin and the defendant had a serious altercation a week before the shooting, culminating in Martin striking the defendant at least 30 times with a clothes iron. The defendant was un cooperative with police when they arrived, and the responding officer testified the defendant stated that he did not want to prosecute Martin and that they had fought about money. The defendant was intoxicated and bleeding profusely, and he had to be forcibly taken to the hospital for medical treatment. The defendant had 11 or 12 lacerations which required stitches.
The day after the beating, the defendant purchased a .25 caliber gun at a pawn shop.
A tenant who witnessed the iron beating testified Martin later told the tenant that he had taken the defendant’s money and that he beat the defendant with an iron because the defendant pulled a fork on him. Martin also told the tenant that if the defendant said anything to him he would do it again. The defendant told this tenant that he was going to let Martin feel the same pain he felt by shooting Martin in the head.
The day after the iron beating, Martin told the manager of the apartment building about the incident, stating that the defendant had been calling his girlfriend names and had tried to scratch him with fingernail clippers. The manager also spoke with the defendant, who threatened to shoot Martin to let him (Martin) know the same pain he (the defendant) felt. That evening the manager went to the defendant’s apartment and the defendant again said he was going to shoot Martin in the head. The next day the manager evicted the defendant for violating his lease. When the defendant was moving out the manager told him it was not worth it to shoot Martin, and the defendant replied that he had to do what he had to do. The manager warned Martin of the threat, who laughed it off.
On the day of the shooting, the defendant was drinking and smoking cigarettes in a friend’s car. He saw Martin on the street, approached him, and asked Martin why he had beaten him and taken his money. Martin pushed the defendant aside. The defendant then shot Martin two times.
The defendant was arrested at the scene. He made no attempt to flee or give aid to the victim. He walked across the street, lit a cigarette, and drank a beer while waiting for the police. He admitted to shooting Martin. One police officer testified the de fendant stated, “I got who I wanted. I don’t want any more trouble.” After being Mirandized, the defendant gave a statement. He told of the beating by Martin a week earlier and indicated he thought Martin robbed him of $100 that night. The defendant stated he purchased a gun at a pawn shop to defend himself because he heard that Martin had a gun. The defendant told the police that he wanted to hurt Martin but did not want to kill him.
At trial, the defendant testified he shot Martin in self-defense. He testified he saw Martin coming down the street and approached Martin to ask why Martin had beaten him. Martin shoved the defendant. The defendant saw Martin throw something down. Martin turned and had his hand inside his pocket or inside his coat, which was partially zipped up. The defendant thought Martin was going to shoot him, so the defendant pulled out his gun and shot Martin two times. The defendant testified that he did not intend to kill Martin.
Martin was pronounced dead shortly after the shooting. One bullet entered the left chest and after passing through the lung and heart it lodged near the rib cage; thé other entered the left nostril and exited the right cheek.
The jury convicted the defendant of second-degree murder. He was sentenced pursuant to the Habitual Criminal Act to 45 years to life. He appeals.
I. “INITIAL AGGRESSOR” INSTRUCTION
The trial court instructed the jury on the defendant’s claim of self-defense, including the following instructions:'
INSTRUCTION 10
“A person is not permitted to provoke an attack on himself with the specific intention to use such attack as a justification for' inflicting bodily harm upon the person he provoked and then claim self-defense as a justification for inflicting bodily harm upon the person he provoked.”
INSTRUCTION 11
“A person who initially provokes the use of force against himself is not justified in the use of force to defend himself unless:
“1. He has reasonable ground to believe that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to other person; or
“2. He has in good faith withdrawn and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.”
These instructions were based on K.S.Á. 21-3214 and are consistent with the language of that statute and are taken from PIK Crim. 3d 54.21 and 54.22. There is no claim that the language of instructions 10 and 11 was erroneous. Rather, the defendant argues that the district court should not have given the instructions at all.
The defendant objected to these instructions, arguing that there was no evidence the defendant provoked an attack from Martin or anyone else. The court overruled the objection, reasoning that the evidence showed the defendant was the one who approached Martin; there was no evidence that Martin approached the defendant.
This court has stated:
“Juiy instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in die case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Walker, 252 Kan. 279, 295, 845 P.2d 1 (1993).
The defendant acknowledges that an initial aggressor s right to use self-defense is limited. He argues the evidence is uncontroverted that the exchange between Martin and the defendant just before the shooting was brief. Martin owed the defendant money and had a week before the shooting brutally beaten the defendant. The defendant sought to talk to Martin when he saw Martin on the street. The defendant argues that at that point either the defendant shot Martin when he saw Martin go for what the defendant believed was a gun, or the defendant simply walked up to Martin and shot him in retaliation for the earlier heating. The defendant contends there was no evidence that he provoked Martin into reaching for a gun or bluffing that he had a gun. He reasons that the “middle ground” indicated by the initial aggressor instructions does not exist under these facts.
The defendant argues that giving these instructions was prejudicial because they may have confused the jury into thinking that the defendant had a duty to retreat. He also reasons that the jury may have been misled into thinking that the defendant had no right to talk to Martin about the beating and about the money he claimed Martin owed him.
The State cites State v. Beard, 220 Kan. 580, 552 P.2d 900 (1976). There, die defendant and the victims became embroiled in a fight. After being beaten by the victims, the defendant left the premises. He returned an hour later, said “I told them I would be back,” and went into one victim’s apartment. The victims followed the defendant into the apartment within a few minutes. Two shots were then heard coming from the apartment. 220 Kan. at 581. The district court instructed the jury on self-defense and included language nearly identical to that used in instructions 10 and 11 in die case at bar. The defendant did not object to the instruction at trial. This court stated:
“The instruction accords with the pertinent statutes . . . and is a correct statement of the law. The instruction, as we read it, does not declare the defendant to be the aggressor, but merely informs the jury of the statutory provisions pertaining to tire use of force ... as well as instructing the jury as to the right of self-defense and limitation on the force to be used by one in defending himself from unlawful attack. Whether defendant was an aggressor remained a question for the jury. There was ample evidence in this case which would have justified the jury in finding that defendant was an aggressor.
“. . . The instruction given was applicable to the evidence in the instant case. On the state of the record we find no error in the giving of the instruction, much less ‘clear error’ which would be required to warrant reversal in the absence of defendant’s objection at trial.” 220 Kan. at 582.
The State argues that Beard is dispositive. The State points out that as in Beard, the defendant was beaten and there was a break in the action. Beard returned to the site of the beating after an hour; the defendant approached Martin after a week had elapsed. Beard said “I told them I would be back”; the defendant told others he was going to shoot Martin in the head.
Instructions 10 and 11 are correct statements of the law. The jury was not instructed that the defendant was an initial aggressor or that the defendant had provoked Martin into reaching for what the defendant thought was a gun. As in Beard, the question of whether the defendant was an aggressor was one for the jury. If the jury did not find that the defendant was an aggressor, it could disregard the limit on the defendant’s right to use self-defense. Instructions 10 and 11 were not misleading or so confusing that the district court erred in giving them. We do not find error on this issue.
II. WITNESS CREDIBILITY
Both the State and the defendant requested an instruction on witness credibility using the language of PIK Crim. 3d 52.09:
“It is for you to determine the weight and credit to be given die testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
The district court instead gave an expanded instruction:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with men in general in considering the testimony of each witness.
“You also may take the following factors into consideration when weighing a witness’s testimony:
“1. the witness’s ability and opportunity to observe and know tlie things about which he had testified;
“2. tlie clarity and accuracy of the witness’s memory;
“3. die witness’s manner and conduct while testifying;
“4. any interest the witness may have in the result of the trial;
“5. the reasonableness of the witness’s testimony when considered in light of all the evidence in the case; and
“6. any bias, interest, prejudice or motive the witness may have.”
The defendant did not object to the language in the instruction given by the court. Our standard of review is as follows:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and die grounds of the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.” State v. Crawford, 255 Kan. 47, Syl. ¶ 5, 872 P.2d 293 (1994).
The defendant contends that the expanded instruction given by the court unduly focused on his credibility by permitting the jury to consider “any interest the witness may have in the result of the trial.” He reasons that the instruction violated two fundamental rights: the presumption of innocence and the right to testify on one’s own behalf. The defendant has the most obvious and greatest interest in the outcome of the trial, yet he is presumed innocent. The defendant suggests that the instruction called special attention to his testimony and told the jury to be suspect of his testimony because of his interest in the outcome of the trial.
The defendant also points out that the State called attention to this instruction in its closing argument:
“There’s a specific instruction about you deciding the credibility of the witnesses based upon their demeanor and so forth and so on. That means how they look. How did they look to you? How do you eyeball them? How do you size them up? Look back to what his body language was under cross-examination and compare that to the lab investigator and the guys from the transmission shop [who witnessed the shooting] and also recall that he wasn’t able to tell me this thing that Nehemiah [sic] pulled out of his jacket, what color was it, how long was it, what was it, what Nehemiah [sic] did with it, and you decide if there’s any credibility or any sense at all to what this defendant — his defense is trying to be.
Both the defendant and the State talked during closing argument about whether the defendant’s testimony was suspect.
This court has continually disapproved the giving of an expanded version of the credibility instruction similar to the instruction given by the district court here. Although giving the expanded instruction is erroneous, this court has continually held that it is not clearly erroneous. See State v. Castoreno, 255 Kan. 401, 407, 874 P.2d 1173 (1994); State v. Clements, 241 Kan. 77, 80-81, 734 P.2d 1096 (1987); State v. Willis, 240 Kan. 580, 586-87, 731 P.2d 287 (1987). In Castoreno, 255 Kan. at 403-04, the instruction given by the district court included factors on credibility similar to those in the instruction in the case at bar but was even more extensive. This court stated:
“Although it was error to give the expanded instruction, it was not clearly erroneous to do so. The trial judge should not give an instruction that this court has found it is the better practice not to give, particularly where reversal is dependent upon the potential for unfair impeachment of the defendant in the peculiar circumstances of the case and whether the defendant objects to the instruction. We disapprove of the language of the instruction used in the present case concerning the credibility of certain witnesses beyond the specific language of PIK Crim. 3d 52.09.” 255 Kan. at 407.
The trial court had also improperly instructed the jury as to the elements of the offenses charged in Castoreño. This court held that the erroneous elements instruction was not harmless error and further that the cumulative effect of the erroneous elements and credibility instructions was clearly erroneous and required reversal. 255 Kan. at 410-11.
The expanded credibility instruction given by the district court here, while erroneous, was not clearly erroneous. The instruction did not highlight the defendant’s credibility or emphasize any factor of his testimony. The defendant was not the only witness with an interest in the outcome of the trial; Martiris girlfriend, an important witness to the events surrounding the iron beating, had an interest in seeing his alleged killer convicted. The presumption of innocence was not diminished by the instruction, and the defendant was not dissuaded from testifying on his own behalf. While this court has repeatedly held that the expanded instruction is erroneous, we cannot say that there was clear error or that the error requires reversal here.
III. THE HABITUAL CRIMINAL ACT
The defendant’s next claims of error relate to sentencing. The chain of events is somewhat complex.
On the first day of trial, the State filed a motion to impose the Habitual Criminal Act (HCA). The State cited two prior convictions: “Aggravated Assault, on 9-29-80, Case No. 12341B, in Gregg County, Texas” and “Aggravated Robbery, on 1-23-86, Case No. 15176A, in Gregg County, Texas.” Sentencing was initially scheduled for June 29, 1993, but was continued at the State’s request because documentation relating to the defendant’s prior convictions had not been received.
A sentencing hearing was held on July 1, 1993. At that time, the State indicated it had received documentation from Texas to support only one prior conviction. The State requested a continuance, the defendant objected, and the State then indicated that it was happy to receive a continuance or happy to proceed. The court’s ruling is somewhat confusing:
“Well, it doesn’t help the Court any. It looks like I would be the one who has more interests than the District Attorney, I’ll concede. I want to put in the record that this voluminous record that’s shown by the PSI in the way the Court looks at his obligation and having heard this case, I had the tendency to give that continuance, but I’ve already said that I’m going to continue it today because I was informed that the District Attorney says they’d be happy for the continuance, happy to proceed. I’m certainly not going to take a prosecutory position. I think that’s a good reason, be a rationally-taken position by the upper court. We’ll proceed.”
The State provided documentation that the defendant was convicted of aggravated assault on September 29, 1980, case number 12341-B in Gregg County, Texas. The court stated: “[T]he State’s authorized the Habitual Criminal Act, the usage of it, and it is a discretionary matter with the Court as to the one being offered.” The defendant’s counsel clarified for the record that the sentencing range was a minimum of 5 to 20 years and a maximum of 30 years to life.
The defendant then pointed out that the court was required to calculate what the defendant’s guidelines sentence would he pursuant to what is now K.S.A. 1994 Supp. 21-4724(f) because due to the prior continuance the sentencing hearing was being held on July 1,1993, the first day the guidelines became effective. The defendant argued that under the guidelines his criminal history should be category D, one prior person felony, because the State was unable to provide proof of any other convictions. The State disagreed that the defendant’s criminal history was category D. At that time the court stated, “It’s going to be two with Habitual, isn’t it?” The State pointed out that according to the PSI, the defendant had four prior person felonies. At that time, the defendant’s counsel stated that he had not filed an objection to the criminal history set forth in the PSI, as required by the sentencing guidelines act, because the sentencing hearing was initially scheduled to take place prior to July 1, 1993. However, the defendant’s counsel stated that he did not want additional time to file the requisite notice, believing it unnecessary because a guidelines sentence would not actually be served. The court then stated, “[T]he only thing about that is, you choose to disagree with what the PSI reflects and I think that gives me the authority for the continuance.” The court then decided to continue the hearing.
The sentencing hearing was continued to July 14, 1993. On July 14, 1993, the State filed an amended motion to impose the Habitual Criminal Act, citing the same aggravated assault conviction relied on in the earlier motion and additionally a conviction for “Robbery, on 9-21-76, in Gregg County, Texas.”
The remainder of the sentencing hearing was eventually held on August 20, 1993. The defendant argued that to allow the State to establish another conviction for purposes of the HCA constituted double jeopardy because the defendant’s liability under the HCA had been established at the prior hearing and the defendant had at that time understood what his liability under the HCA was. After reviewing the record of the earlier sentencing hearing, the court stated:
“I think we even had to say we weren’t ready to proceed. The record does reflect that the defense did object to a continuance. I think die Court did rule that the Habitual Criminal motion would be allowed. I cannot say tiiat I’m convinced that I limited it to the one because we were talking that we weren’t ready to proceed with the sentencing. I can understand die'defense’s position, but I don’t think that the Court had committed to the defendant that it would just be one conviction in regards to die Habitual Criminal Act. I certainly hadn’t pronounced any sentence. I hadn’t yet. We were close to it when the Court found out that he was, in all candomess, basically dumb as to die effect of the grid.
“So we’ll proceed with sentencing. I’m going to allow the amendment since there’s been no pronouncement and we’ll proceed.”
The State then established the defendant’s robbery conviction as alleged in the amended motion to impose the HCA. The court ultimately imposed a sentence of 45 years to life based on two prior felonies.
Under the HCA, if the defendant is convicted of second-degree murder and has one prior conviction for a felony comparable to those specified in article 34, 35, or 36 of chapter 21, the court may sentence the defendant to not less than the least nor more than twice the greatest minimum and maximum sentences authorized for second-degree murder. If the defendant has two such prior convictions, the court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence and may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence authorized for second-degree murder. K.S.A. 1994 Supp. 21-4504. For second-degree murder with one prior conviction, the minimum term is between 5 and 30 years and the maximum sentence is between 20 years and life, for a minimum sentence of 5 to 20 years and a maximum sentence of 30 years to life. For second-degree murder with two prior convictions, the minimum term is between 15 and 45 years and the maximum term is between 20 years and life, for a minimum sentence of 15 to 20 years and a maximum sentence of 45 years to life. See K.S.A. 1994 Supp. 21-4501(b). The defendant’s sentence is the maximum which may be imposed for a third offender under the HCA, 45 years to life.
The defendant argues that the State should not benefit from the district court’s continuance of the sentencing hearing to resolve the guidelines issues. He cites K.S.A. 1994 Supp. 21-4504(d), which states:
“If any portion of a sentence imposed . . . under this section, is determined to be invalid by any court because a prior felony conviction is itself invalid, upon resentencing the court may consider evidence of any other prior felony conviction that could have been utilized . . . under this section, at the time the original sentence was imposed, whether or not it was introduced at that time, except that if the defendant was originally sentenced as a second offender, the defendant shall not be resentenced as a third offender.”
The defendant suggests that the continuance of the sentencing hearing occurred “under questionable circumstances” because of a matter unrelated to the HCA. The defendant reasons that the district court ruled at the first sentencing hearing that he would be sentenced as a second offender and the court therefore could not, at the subsequent hearing, sentence the defendant as a third offender.
The State argues that K.S.A. 1994 Supp. 21-4504(d) is inapplicable because the first imposition of the HCA was not reversed on appeal. The rationale behind the statute is that the defendant should not be penalized for having taken an appeal and that re-sentencing can have no basis in vindictiveness.
The defendant cites State v. Zirkle, 15 Kan. App. 2d 674, 814 P.2d 452 (1991). There, the district court sentenced the defendant to one to five years’ imprisonment, then asked how much credit toward that sentence the defendant had. Upon the defendant’s reply that he had approximately six months’ credit, the court stated, “ Well, I am going to vacate my sentence and make it two-to-five.’” 15 Kan. App. 2d at 675. Citing State v. Moses, 227 Kan. 400, 607 P.2d 477 (1980), the Court of Appeals held that the sentence was imposed when the court announced the one-to five-year sentence from the bench. “At that moment, Zirkle knew he had been sentenced and what the sentence was.” 15 Kan. App. 2d at 677. The court stated: “Once a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence.” 15 Kan. App. 2d at 678. See State v. Royse, 252 Kan. 394, Syl. ¶ 2, 845 P.2d 44 (1992).
In Royse, on August 29, 1991, the district court imposed from the bench maximum sentences of 15 years to life on two counts of second-degree murder but failed to state whether the sentences were to run concurrently or consecutively. A week later, the district court ordered the defendant to return to court and ordered that the sentences run consecutively. 252 Kan. at 395. This court agreed with the defendant that his sentencing was complete when it was orally pronounced from the bench on August 29, which by operation of K.S.A. 1991 Supp. 21-4608(1) meant that the sentences shall be served concurrently and could not subsequently be increased. 252 Kan. at 396, 398.
In Moses, 227 Kan. 400, Syl. ¶ 2, this court stated: “The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.”
The defendant argues that the court vacated a legal order under the HCA to impose an even harsher order. The State reasons that the court had granted the State’s motion to invoke the HCA but had not determined the number of prior convictions; rather, the court continued the sentencing hearing to determine the number of prior convictions.
The defendant also argues that double jeopardy precludes the State from having a second bite at the HCA apple. He reasons that he had a reasonable expectation as to his sentence which cannot be arbitrarily upset without offending the double jeopardy clause. The double jeopardy clause prohibits multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969); State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984). The State contends that multiple punishments for the same offense were not imposed.
Although the record of sentencing here is somewhat confusing concerning whether the district court had ruled on the imposition of the HCA at the first sentencing hearing, it appears drat the court did accept the State’s proof that the defendant had one prior offense. A continuance was ordered not so the State could obtain additional proof of another prior conviction (the State rejected a continuance for that purpose), but to determine the defendant’s prior criminal history for the purpose of calculating what his guidelines sentence would be. Significantly, though, the district court did not impose any sentence on the defendant at the first sentencing hearing. Had the court erroneously imposed sentence based on the two alleged convictions and been reversed because one of the alleged convictions was invalid, the trial court on remand could have allowed the State to introduce evidence of another conviction so long as the original sentence is not increased. K.S.A. 1994 Supp. 21-4504(d). Because sentence was not imposed, the defendant had no reasonable expectation as to what sentence would be imposed. When the sentencing hearing resumed, the State did provide proof of a second conviction. Under these circumstances, the trial court did not err in sentencing the defendant as a third offender.
IV. ABUSE OF DISCRETION
The defendant next contends that the district court abused its discretion in sentencing him to 45 years to life. He argues that the sentence was based on the district court’s personal belief that the defendant was guilty of first-degree murder despite the jury’s determination that he had committed second-degree murder. The defendant also asserts that the court failed to acknowledge the degree of provocation caused by the victim.
The district court has considerable discretion in determining the sentence to be imposed:
“It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. McDonald, 250 Kan. 73, Syl. ¶ 4, 824 P.2d 941 (1992).
The sentencing judge’s discretion “is not boundless and is to be exercised with regard to what is right and equitable under the circumstances.” State v. Bailey, 251 Kan. 527, Syl. ¶ 3, 834 P.2d 1353 (1992).
The defendant points to comments made by the trial judge. The judge stated:
“I don’t think the defendants specifically come to Kansas to kill anyone, but from his record I think he brought with him to Kansas propensity maybe to kill someone. What I’m referring to is his background. It’s filled with violence. Both counsel in this case did a superb job in his trial. Mr. Greeno certainly did a superb trial because if this had been a court decision, tried before a Court, this Court could have found first degree murder for the reason there’s no way in the world to believe that — the deceased other than the testimony of — the defendant itself gave any indication that he was armed. The defendant was parked across the street with another person. He walked over to the deceased. The deceased was attempting, according to two witnesses who were in the shop, to enter the door. The deceased wasn’t even — I don’t even know that he knew that the defendant was across the street in a car, but the defendant crossed clear across St. Francis to reach the defendant [sic]. And, of course, the Court does remember the testimony of the man [the apartment manager] on the porch with the deceased, but the Court also remembers that the defendant, according to the evidence, about asked or provoked whatever he received that day. The defendant had — at one point had the deceased coming out of a closet and hiding. The evidence by that same individual who spoke on the porch, if I have my witnesses straight, testified that it occurred in the hallway. That gun was gone back to the pawnshop and gotten for some reason with it having been returned, and it could be looked upon as having satisfied the landlord that the defendant decided that he was going to go back and get the gun for some purpose. I can’t say what he had in mind. I know what he used it for. I have no disagreement with the decision that the jury brought in, even though I would have found first-degree murder if I’d have heard it. But here — here it is- expected to respond to, in their decision making process, the same way that a Court might, and that’s one of the strong points for the jury system. There’s no question that the community, whatever community Mr. Hunt wishes to five in, they’d be better off with him out of it, therefore, the primary' concern of this Court in connection with 4601 is the community.
“We’ve covered and I’ve been reminded of the defendant’s prior criminal history and one of violence essentially. The defendant, in this Court’s mind, has had all kind of breaks through different judicial areas or places where other judicial discretion was exercised. I don’t know any greater harm that could be caused than a person to be killed, whether it’s first or second degree. Certainly the defendant intended — when you shoot someone you certainly intend to cause whatever the bullet results in the end of it of the occasion. I don’t think that the law allows provocation to extend over to the time that — the time that passed after Mr. Hunt provoked the defendant [sic] into whipping him in the head— across the head with the iron. The Court’s basing provocation on the evidence and what happened in the hallway, what happened down — . . . — and on some steps somewhere. I don’t cite it ‘cause I don’t remember exactly, but the record will show. I stated before on the day in question there was certainly no part or action taken by the deceased in regards to the defendant.
“There’s no justification whatsoever for the criminal contact — conduct, I should say, not contact. The day in question, the criminal conduct was all that of the defendant, as I’ve said before, none on the part of the deceased. ” (Emphasis added.)
The defendant argues that the court’s remarks that it would have found first-degree murder are irrational and undermine the jury system. He states that he “can reasonably assume that he received [a sentence of 45 years to life] because the judge disagreed with the jury’s verdict. ... If this sentence is not vacated, he will rightfully believe that he was hammered because the judge disagreed with the verdict.” The defendant also contends that the court failed to consider mitigating factors relating to the factors found at K.S.A. 21-4606(2)(d), (e), and (f):
“(d) The degree of the defendant’s provocation;
“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(f) Whether the victim of tire defendant’s criminal conduct induced or facilitated its commission.”
He reasons that the court confused mitigation of punishment and guilt.
The State points out that the court specifically stated that it had no disagreement with the jury’s verdict and reasons that it was not erroneous for the court to note the jury could have reached a different verdict based on the evidence. The State also argues that Martin’s actions a week before the shooting do not constitute provocation, there was no justification for the defendant’s action, and Martin did not induce or facilitate his murder. The State reasons that the earlier beating was not a mitigating circumstance. The State also points to other factors which support the sentence imposed, including the defendant’s prior criminal history.
The court’s comments in totality reflect proper sentencing considerations. The court’s comments properly evaluated the sentencing factors enumerated in K.S.A. 21-4606(2). It is for the sentencing court to determine what weight to give to mitigating factors. The court did consider the fact that the defendant and Martin had a prior altercation in which Martin beat the defendant with an iron. The court noted that the iron incident was a week before the shooting, and the court gave little weight to the iron incident because of this fact. The court amply justified the sentence imposed, and we are unable to say that it was an abuse of discretion.
V. ALLOCUTION
Finally, the defendant contends that he was denied allocution at sentencing. K.S.A. 1994 Supp. 22-3424(4) states in pertinent part: “Before imposing sentence the court shall: . . . (d) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.”
Before sentencing the defendant, the court twice addressed him. The court first stated, “I’ll ask Mr. Hunt if there’s anything he’d want to say in regards to this, his case, that he’d want to say at this time. This is the time that he may speak on his own behalf about this case.” The defendant responded: “Judge Watson, I didn’t come to Kansas to kill anyone. That wasn’t my intent. I didn’t come to Kansas to get robbed and beat up. Thank you.” After the lengthy comments of the court cited in the previous section of this opinion, the court stated: “I would ask defense counsel or — and the defendant if there’s any legal reason why the Court should not impose sentence at this time.” The response was by defense counsel: “None that we know of, Your Honor.”
The defendant contends that the right to allocution may not be waived by either argument of counsel or by silence of the defendant. The defendant cites State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988). There, the sentencing court asked for and received defense counsel’s comments on sentencing. The court did not specifically address the defendant but asked a general question, “I would ask, is there any legal reason why sentence should not be imposed?” Defense counsel responded that there was not, but the defendant was silent. 242 Kan. at 520. After a thorough discussion of the history of allocution and the rationale behind it, this court stated: “We hold the provision in K.S.A. 22-3424(4) establishes the right of a defendant to allocution, which right is not waived by the defendant’s silence or by argument of counsel.” 242 Kan. at 529.
The court here did permit the defendant to make a statement on his own behalf prior to sentencing, but the court did not tell the defendant that he could present evidence in mitigation of punishment. The failure to ask the defendant if he wished to present any evidence in mitigation of punishment did not comply with K.S.A. 1994 Supp. 22-3424(4)(d). The defendant was denied allocution.
The defendant states, “The denial of allocution was a prejudicial violation of Mr. Hunt’s right to be heard during his sentencing hearing.” He does not otherwise show how the failure was prejudicial.
The State cites State v. Borders, 255 Kan. 871, 879 P.2d 620 (1994). There, the sentencing was originally scheduled for 2:30 p.m. but was rescheduled for 10:30 a.m. At the morning hearing, the defendant’s counsel sought a continuance and informed the court that he had been unable to notify the defendant’s family of the morning hearing and therefore they were unable to be present. The court denied the continuance. 255 Kan. at 874. Before sentencing the defendant, the court gave the defendant the opportunity to make a statement “ In the way of what the Court sentence might or should be.’ ” 255 Kan. at 876. The defendant declined to make a statement. On appeal, the defendant argued that the denial of a continuance precluded him from presenting evidence in mitigation of punishment, but he did not show what the evidence might have been. This court stated:
“We believe the requirement of a showing of prejudice to the substantial rights of the defendant is equally applicable to alleged violations of the allocution statute as it is to the many other areas of criminal procedure where prejudice must be shown to justify a reversal. The defendant here has shown absolutely no prejudice, and while failure to comply with a mandatory statute, such as K.S.A. 1992 Supp. 22-3424(4), is error, [it is] not reversible error unless prejudice to tire substantial rights of the defendant is shown.” 255 Kan. at 881.
In the syllabus this court stated:
“For a defendant to successfully assert error based upon a denial of the opportunity to present evidence in mitigation of punishment pursuant to die right to allocution in K.S.A. 1992 Supp. 22-3424(4), the defendant must make a proffer of die contemplated evidence comparable to tiiat required by K.S.A. 60-405.” 255 Kan. 871, Syl. ¶ 4.
Here, the defendant does not identify how he was prejudiced by the sentencing court’s failure to ask if he wished to present evidence in mitigation of punishment. The defendant has not made the requisite proffer of the contemplated evidence, nor does the record show that his substantial rights were prejudiced. We do not find that the defendant was prejudiced by the court’s failure to provide allocution. The denial of allocution was harmless error.
Affirmed.
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By letter dated May 2, 1995, and transmitted by facsimile machine to the Cleric of the Appellate Courts, respondent Brian J. Shultz, of Lawrence, voluntarily surrendered his license to practice law in the State of Kansas pursuant to Supreme Court Rule 217 (1994 Kan. Ct. R. Annot. 215).
On October 28, 1994, this court publicly censured respondent following a formal hearing held March 30, 1994, on a three-count complaint. In re Shultz, 256 Kan. 196, 883 P.2d 779 (1994). The court considered and accepted the hearing panel’s recommendations, finding violations of MRPC 1.4 (1994 Kan. Ct. R. Annot. 302) and 1.16 (1994 Kan. Ct. R. Annot. 338), and Supreme Court Rule 207 (1994 Kan. Ct. R. Annot. 199).
At a prior formal hearing on another matter, held November 30, 1993, respondent was informally admonished by the panel for violations of MRPC 1.3 (1994 Kan. Ct. R. Annot. 297) and 1.4, and Supreme Court Rule 207.
At a subsequent formal hearing on yet another matter, held November 28,1994, the panel found violations of MRPC 1.3; 1.4; 3.2 (1994 Kan. Ct. R. Annot. 347); and 3.3 (1994 Kan. Ct. R. Annot. 348); and Supreme Court Rule 207. The panel recommended suspension from the practice of law for one year and reinstatement only after that time and fulfillment of three conditions: a psychological report confirming that respondent is psychologically suited for readmission to the practice of law, completion of a law office management and/or client relations seminar, and passing the multistate ethics exam.
Another formal hearing is scheduled for May 18,1995. The formal complaint alleges violations of MRPC 1.1 (1994 Kan. Ct. R. Annot. 292); 1.2 (1994 Kan. Ct. R. Annot. 295); 1.3; 1.4; 1.5 (1994 Kan. Ct. R. Annot. 306); 1.15 (1994 Kan. Ct. R. Annot. 332) (including theft of client trust funds); 1.16; 3.2; 4.1 (1994 Kan. Ct. R. Annot. 360); 7.1 (1994 Kan: Ct. R. Ánnot. '370); 7.5 (1994 Kan. Ct. R. Annot. 375); 8.1 (1994 Kan. Ct: K Annot.'376); and 8.4 (1994 Kan. Ct. R. Annot. 379); and Supreme Court Rules 207 and 208 (1994 Kan. Ct. R. Annot. 203), and requests restitution and disbarment.
Dated this 15th day of May, 1995.
In yet another docketed complaint, respondent is accused of abandoning.his client and missing the statute of limitations in a civil lawsuit. There is a corresponding legal negligence suit pending in Shawnee County District Court, Division 7, Timothy Chambers v. Brian J. Shultz, case No. 95-CV-191.
This court, after due consideration, finds that it is in the best interest of the legal profession and the public to accept respondent’s voluntary surrender of his license to practice law in Kansas and that respondent’s certificate to practice law.should be canceled and declared void.
It Is Therefore Ordered'that Brian J. Shultz be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the ñamé of Brian J. Shultz from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be. published in the Kansas Reports, that the costs herein hé assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217).
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The opinion of the court was delivered by
Six, J.:
This is a newly discovered evidence case. David G. Thomas was convicted of first-degree murder in October 1991. We affirmed his conviction in State v. Thomas, 252 Kan. 564, 847 P.2d 1219 (1993). Thomas later moved for a new trial, alleging that three witnesses previously unknown to him now claim they saw someone else commit the murder for which he was convicted. The district court reviewed one affidavit and two written statements of the three witnesses, heard arguments of counsel, and denied the motion.
Thomas contends that the district court abused its discretion by reaching contradictoiy conclusions of law in explaining its ruling and by apparently finding the new witnesses’ statements to lack credibility without observing their testimony. He requests a new trial, or, in the alternative, a full evidentiary hearing on his motion for a new trial.
The appellate standard of review of an order denying a motion for a new trial under K.S.A. 22-3501(1) is generally limited to whether the trial court abused its discretion. State v. Hall, 252 Kan. 669, 671, 847 P.2d 1288 (1993). Under the abuse of discretion standard, if a reasonable person could agree with the trial court’s decision, it will not be disturbed on appeal. See State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).
Our jurisdiction is under K.S.A. 1994 Supp. 22-3601(b)(l) (Thomas was convicted of a class A felony). We find no abuse of discretion and affirm.
Facts
The facts underlying Thomas’ conviction are set forth in our opinion in State v. Thomas, 252 Kan. at 566-67. Thomas borrowed a .22-caliber rifle on March 25, 1991, from Stan and Joy Austin, telling them that he was going hunting. The next evening Thomas and two acquaintances drove to the north side of Wichita. Thomas stopped the car, pulled the rifle from the car, and began chasing the victim, Veotis Richmond. Thomas’ two acquaintances, who stayed behind, heard two or three gunshots. When Thomas returned, he said that the man had sold him “bad drugs.” At the Austins’ house Thomas wiped off the .22 rifle and returned it, stating he did not want his fingerprints on the gun. Richmond’s body was found the next day. An autopsy revealed that Richmond died of a single gunshot to the back of his head. A firearms expert testified that the bullet recovered from the victim was a .22, fired from the rifle that Thomas borrowed from the Austins.
Thomas’ defense at trial was that someone else killed Richmond. He attempted to introduce evidence that a man named Roger Tucker had been angry with Richmond on the day of the shooting and was looking for him. Thomas’ only evidence con ceming Tucker and Richmond was double hearsay and was not admitted as substantive evidence. There were no witnesses in Thomas’ defense claiming to have seen the Richmond murder.
Almost two years after his conviction, three persons came forward claiming to know from their own observations that Thomas did not kill Richmond. Two of the three new witnesses, Tuggle and Roberts, were fellow inmates of Thomas in the El Dorado Correctional Facility. The third witness, Beans, was an inmate in the Hutchinson Correctional Facility.
Of the three new witnesses, only Roberts executed a sworn affidavit. Roberts said he “was down on 9th Street, when I saw Roger Tucker fighting with Veotis Richmond when Roger come up with a gun and shot Veotis.”
Beans, who was apparently the first of the three witnesses to contact Thomas’ defense counsel, submitted a handwritten, unsworn statement. In his statement, Beans claims that he “saw Roger Tucker kill Veotis Richmond” and explains that he did not come forward at the time with his information because he was “on the run” from a parole violation and because he feared Tucker.
The third new witness, Tuggle, sent a letter to Thomas’ counsel (after Thomas’ motion for new trial had been filed) saying that Thomas was “convicted of a crime that he did not commit” and that Tuggle would “like to explain this to the court because I should have done this a long, long time ago.”
Following a procedure similar to that described in State v. Dunn, 243 Kan. 414, 436, 758 P.2d 718 (1988), the district court conducted an initial hearing on the motion for a new trial. The trial court heard the presentation of evidence, which was limited to the written affidavit and the two letters of the witnesses, and a summation by counsel. As explained in Dunn, such preliminary inquiries allow the district court “to determine whether the claims asserted in the motion are substantial before granting a full evidentiary hearing and requiring the petitioner to be present.” 243 Kan. at 436. The three witnesses were not subpoenaed to testify in person, and Thomas was not personally present.
After hearing arguments of counsel and reviewing the substance of the three statements, the district court denied Thomas’ request for a full evidentiary hearing and denied the motion. The judge who ruled on the motion was not the same judge who presided at trial. The district court, in a written journal entry, explained that its denial was, in part, because “the testimony of these witnesses is not newly discovered evidence for purposes of K.S.A. 22-3501.”
The rules governing motions for new trials based on newly discovered evidence are well established. K.S.A. 22-3501(1) provides:
“The court on motion of a defendant may grant a new trial to him if required in the interest of justice. ... A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment.”
The test for determining whether a new trial is warranted based on newly discovered evidence has two parts: (1) The defendant bears the burden of establishing that the newly proffered evidence is indeed “new” — that is, it could not with reasonable diligence have been produced at trial; and (2) the evidence must be of such materiality that there is a reasonable probability it would produce a different result upon retrial. Hall, 252 Kan. at 671.
Alleged Inconsistency in the District Court’s Ruling
Thomas first contends that the instant case should be remanded because the district court’s oral ruling “defies logic.” According to Thomas, the district court seemed to assume, on one hand, that Thomas’ counsel could not (with reasonable diligence) have produced these new witnesses at trial, and yet it still ruled that this “is not newly discovered evidence.” Thomas’ confusion about the district court’s ruling is understandable. The district court’s conclusion that this was not “newly discovered evidence” is ambiguous. The ambiguity, however, does not justify a remand.
In an exchange between the district court and defense counsel, the court explained its “three-fold ruling”: (1) An evidentiary hearing was not required to decide the motion; (2) the proffered evidence was not “newly discovered evidence”; and (3) “even if it was newly discovered evidence . . . they would have run across [the evidence] with reasonable due care anyway.”
The district court stated orally and in the written journal entiy that the newly proffered testimony from the three new witnesses was not “newly discovered evidence.” However, when asked directly whether it was ruling that defense counsel did not use due diligence in attempting to locate these witnesses at the time of trial, the district court responded, “I’m not making that ruling at all.” The district court revealed its suspicion that Thomas may have known these three witnesses at the time of the trial, stating, “I mean, if you — if you knew them now, he probably . . . knew them then. Your client has the burden to go through all of his list of buddies then.” However, the trial court decided not to rest its ruling on grounds that the evidence could have been produced at the original trial. Instead, the court concluded, “Well I’m just going to assume that you couldn’t have found it, but I’m going to rule that this is not newly discovered evidence.”
The logical interpretation of the district court’s ruling, considering the applicable legal standards, is that it was based on the second part of the analysis, i.e., whether the newly proffered evidence was so material as to create a reasonable probability of changing tire outcome upon retrial. The district court, however, never spoke directly in terms of materiality and credibility. Therefore, Thomas contends that a remand is required. We disagree. The district court implicitly conveyed its distrust of the evidence throughout the hearing and therefore denied the motion without allowing a full evidentiary hearing. The most telling clue to the district court’s ruling came when the court explained: “Now, we are only dealing with three people currently in the penitentiary, locked up where the defendant is now or at some time in the past. You know, that’s — that is a bit peculiar. It is also consistent with a lot of cases we have all seen in the past.” (Emphasis added.)
The district court’s conclusion that Thomas did not put forward “newly discovered evidence” was based on an implicit judgment of the credibility and materiality of the proffered statements. The ruling was not an abuse of discretion on the grounds of ambiguity or erroneous application of the law.
Whether the District Court Erred in Denying the Motion Without a Full Hearing
Thomas asserts that the district court erred in implicitly weigh ing the credibility of the proffered testimony solely from the submitted affidavit and statements of the three new witnesses. He contends that the district court abused its discretion if it denied his motion based on a credibility determination without conducting a full evidentiary hearing. He further contends that, because the district court did not observe live testimony, the standard of review should be de novo, rather than abuse of discretion. No full hearing was held, and the district court did not rely on personal knowledge of the new witnesses in judging their credibility. Consequently, Thomas reasons, we exercise equality with the trial court on review in considering whether the proffered testimony is credible and material.
A defendant has no automatic right to a full evidentiary hearing by filing a motion for a new trial based on alleged newly discovered evidence. See Dunn, 243 Kan. at 436. “Although defendants are tireless in seeking new trials on the ground of newly discovered evidence, motions on this ground are not favored by the courts and are viewed with great caution.” 3 Wright & Miller, Federal Practice & Procedure: Crim. 2d § 557, p. 315 (1982).
We have reviewed cases in which new trial motions based on alleged newly discovered evidence were denied without a full evidentiary hearing. See, e.g., State v. Bradley, 246 Kan. 316, 319, 787 P.2d 706 (1990); Dunn, 243 Kan. at 437-39; State v. Holley, 238 Kan. 501, 509-10, 712 P.2d 1214 (1986). In Bradley and Holley, the trial court reached its conclusions about the credibility of the proffered evidence based solely on the affidavits submitted with the motions. Bradley, 246 Kan. at 319; Holley, 238 Kan. at 509-10. We reviewed the district court’s final decision in Bradley and Holley under the abuse of discretion standard.
Admittedly, Bradley and Holley have factual dissimilarities from the case at bar. In Bradley, the district court found the affidavits of Bradley and an acquaintance (and fellow inmate at Lansing) to be without credibility, stating, “ ‘[Tjhis Court knows and remembers Tyrone Bradley and Henry Fletcher Holliday and does not believe the testimony of either to be reliable or creditable.’ ” 246 Kan. at 319. The trial court in Bradley knew both affiants from past experience and could assess their credibility on that basis. In the in stant case, the district court did not claim to know any of the three new witnesses from personal experience or to base its ruling on such knowledge.
Holley relied on his own affidavit and on two unsigned and unsworn letters purportedly from his codefendant, which absolved him of any involvement in the robbery for which he had been convicted. Holley, 238 Kan. at 509. The only affidavit submitted with Holley’s motion was his own, which would naturally be questioned as self-serving. Furthermore, we stated that Holley “did not call [his codefendant and the source of the allegedly new evidence] to testify in his motion for new trial,” suggesting that Holley may have been provided the opportunity to call his witness, but chose not to. 238 Kan. at 509. Thomas complains that he was never provided the opportunity to have his new witnesses testify and have their credibility judged from the witness stand.
The abuse of discretion standard applies to the decision of whether to grant a new trial based on newly discovered evidence, regardless of whether a full hearing with live testimony is held. Neither counsel nor our independent research has revealed case law suggesting otherwise. We think there are valid reasons for deferring to the trial court’s decision, even when it is based solely on “paper evidence.” Making a judgment about the credibility of affidavits and handwritten statements is different than construing language in a contract. A credibility judgment is not an interpretation of the meaning that words on paper intend to convey but, rather, whether the words should be believed as true. Credibility can be affected by many factors other than simply the physical demeanor of the witness testifying; bias, interest, and motive may be reasonably implied from all the circumstances. Moreover, trial judges routinely receive, evaluate, and decide motions for new trials based on newly discovered evidence. They develop unique experience and perspective in evaluating the credibility and materiality of paper evidence submitted in support of such motions. They can draw upon such experience in attempting to distinguish potentially meritorious motions from frivolous ones.
We support the application of our well-established rule that the credibility of the evidence offered in support of a motion for a new trial is for the trial court’s consideration, Hall, 252 Kan. at 672, even where a full hearing is not held. We apply the abuse of discretion standard of review to the district court’s decision to deny Thomas’ motion for a new trial.
Thomas bears the burden of bringing forward new evidence. The new evidence must be sufficiently credible, substantial, and material to raise in the court’s mind, in light of all the evidence introduced at the original trial, a reasonable probability of a different outcome upon retrial. In the instant case, Thomas produced only one sworn statement, that of Roberts, a fellow inmate. His other two submissions were unsworn statements, also from prison inmates. Even without making any general assumptions about the credibility of persons with a criminal record, the fact that two of Thomas’ three new witnesses share his same address raises a reasonable suspicion about the genuineness of their testimony.
The credibility of Tuggle’s typewritten letter may be further undermined by his handwritten postscript to defense counsel requesting information and assistance in “getting back into court” himself and closing, “Please contact me on this situation [his] ahead of time.” The district court may have implied from Tuggle’s postscript that Tuggle was motivated by his own self-interest in coming forward with “new” information and that Tuggle’s degree of cooperation might depend on how much help he receives.
The credibility of Thomas’ proffered new evidence is further questioned by the compelling evidence of his guilt introduced at trial. Thomas proffers no new evidence to diminish the State’s firearms expert’s analysis. The expert pinpointed the lethal bullet to the rifle that uncontroverted trial testimony placed in Thomas’ possession at the time of the murder.
Our opinion in the case at bar is not to be construed as an endorsement of bypassing evidentiary hearings on newly discovered evidence motions as a standard practice. Under the circumstances in this case it was not an abuse of discretion for the district court to deny Thomas’ motion for a new trial under K.S.A. 22-3501(1) and his request for a full evidentiary hearing on the motion.
Affirmed.
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The opinion of the court was delivered by
Holmes, C.J.:
The State of Kansas appeals from an order of the district court dismissing a complaint against Barbara Gulledge a/k/a Barbara Jones for possession of marijuana in violation of K.S.A. 1993 Supp. 65-4127b and possession of marijuana without a tax stamp in violation of K.S.A. 79-5201 et seq. Based on Montana Dept. of Rev. v. Kurth Ranch, 511 U.S__, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), the district court found further prosecution of the complaint would constitute double jeopardy because a drug tax had already been assessed and partially satisfied. This court has jurisdiction pursuant to K.S.A. 1994 Supp. 22-3602(b)(l) (appeal to Supreme Court from order dismissing complaint).
For the purposes of this appeal, the parties have stipulated to the following facts:
“1) That Barbara Gulledge was charged in the District Court of Ellsworth County, Kansas, on the 13th day of September, 1993, with the misdemeanor crime of possession of marihuana and the felony crime of possession of marihuana without a tax stamp affixed thereto, in violation of K.S.A. 65-4127b and K.S.A. 79-5201, et seq., respectively.
“2) That these charges were still pending against the Defendant as of July 7, 1994.
“3) That subsequent to the filing of file aforesaid formal charges against the Defendant, the Kansas Department of Revenue did assess and levy a drug tax against the Defendant Barbara Gulledge. The basis for this assessment and levy was the quantity of marihuana, allegedly possessed by Gulledge which gave rise to the criminal charges in Ellsworth County District Court against Barbara Gulledge.
“4) That the officers arresting Gulledge seized from her person as of the date of tire arrest the sum of $428.00. This said amount of money was delivered to the Kansas Department of Revenue prior to July 7, 1994, as per a drug tax warrant served upon Ellsworth County Law Enforcement officers by Kansas Department of Revenue Agent Bruce Stout.
“5) That the Kansas Department of Revenue did serve upon the Defendant Gulledge a copy of the drug tax warrant prior to July 7, 1994.
“6) That the seizure of the $428.00 by the Kansas Department of Revenue is final and, otherwise, non-appealable.”
The docketing statement filed by the State asserts that the drag tax assessed against the defendant “was satisfied in full.” The defendant filed a pretrial motion seeking dismissal of the criminal charges on the grounds that further prosecution after assessment and payment of the drag tax constituted double jeopardy under the United States and Kansas Constitutions. Following argument, the trial court granted the motion based upon the holding of the Supreme Court in Kurth Ranch.
The issue now before us may be stated as: Does assessment and payment of amounts allegedly owed under the Kansas Drag Tax Act constitute a criminal punishment for double jeopardy purposes under the holding in Montana Dept. of Rev. v. Kurth Ranch, 511 U.S__, 128 L. Ed. 2d 767?
Before turning to the Supreme Court’s decision in Kurth Ranch and the position of the parties to this appeal, the relevant provisions of the Kansas Drug Tax Act and our decisions interpreting the act will be briefly reviewed.
The statutes imposing a tax on marijuana and controlled substances, commonly referred to as the Kansas Drug Tax Act (Act), were first adopted in 1987 and are codified at K.S.A. 79-5201 et seq. “Marijuana” is defined by reference to the appropriate subsections of K.S.A. 65-4101 and is included within the Act if possessed in violation of Kansas law. K.S.A. 1993 Supp. 79-5201(a). A “dealer” is any person who unlawfully acquires or possesses more than 28 grams of marijuana. K.S.A. 1993 Supp. 79-5201(c). K.S.A. 1993 Supp. 79-5202 imposes a tax on marijuana and other controlled substances and bases the rate of taxation on the weight of the substance in a dealer’s possession. Marijuana is taxed at $3.50 per gram. K.S.A. 79-5203 provides for administration of the tax by the Director of Taxation and requires certain forms to be filled out at the time of payment of the tax.
K.S.A. 1993 Supp. 79-5204(a) prohibits a dealer from possessing marijuana unless the tax has been paid. Official stamps or labels are to be purchased from the Director of Taxation and affixed to the marijuana as evidence of payment. Each stamp is valid for three months after issuance. Any person may purchase the stamps without disclosing his or her identity. K.S.A. 1993 Supp. 79-5204(b). The tax is due immediately upon acquisition or possession of marijuana in the state. K.S.A. 1993 Supp. 79-5204(d). K.S.A. 1993 Supp. 79-5205(a), applicable here, allows the Director to assess the tax immediately upon learning it has not been paid. If payment is not immediately made after notifying the dealer of the tax, penalty and interest due, the Director may collect the amount due as provided in the income tax statutes. The taxpayer has 15 days to request a hearing regarding the assessment. K.S.A. 1993 Supp. 79-5205(b). Information obtained in compliance with the Act is confidential and may not be used against the dealer in any criminal proceeding except proceedings involving taxes due under the Act. K.S.A. 79-5206.
K.S.A. 79-5208 establishes criminal and civil penalties. A dealer violating the Act is subject to a civil penalty of 100 percent of the tax in addition to payment of the tax itself. The Act makes distributing or possessing marijuana without affixing the appropriate stamps a crime, and upon conviction, the dealer may be sentenced to not more than five years imprisonment and/or payment of a fine not exceeding $10,000. The statute was amended in 1994 to provide that the crime is a severity level 10 felony. See K.S.A. 1994 Supp. 79-5208. The Act does not give a dealer immunity from criminal prosecution. K.S.A. 79-5209. Those legally possessing the drug, such as doctors, pharmacists, or hospitals, are exempted. K.S.A. 79-5210.
Although the instant case does not involve the constitutionality of the Act itself, three Kansas cases which have considered various constitutional attacks on the Act are instructive. The first case to consider the constitutional validity of the Act was State v. Durrant, 244 Kan. 522, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). In Durrant, the court held the Act does not violate the Fifth Amendment privilege against self-incrimination because all information obtained through compliance with the Act is confidential and may not be used as evidence in the prosecution for any crimes, other than enforcement of the Act itself. 244 Kan. at 535.
Next, the Court of Appeals in State v. Matson, 14 Kan. App. 2d 632, 798 P.2d 488 (1990), rev. denied 249 Kan. 777 (1991), considered a defendant’s claim that the drug tax was really a criminal penalty and as such violated his Fourteenth Amendment right to due process. In Matson, the court relied heavily on United States v. Sanchez, 340 U.S. 42, 95 L. Ed 47, 71 S. Ct. 108 (1950), where the United States Supreme Court upheld a federal statute (now repealed) that taxed the transfer of marijuana to a person who had not paid a special tax and registered. Sanchez recognized a tax may be valid even though it regulates, discourages, or deters the activity taxed. This principle applies even though the revenue obtained is negligible or the revenue purpose of the tax is secondary. 340 U.S. at 44.
After reviewing Sanchez, the court in Matson analyzed the legislative history of the Kansas Drug Tax Act:
“Although the minutes of the Kansas House and Senate Committees show that the primary purpose of the Act was to combat drug usage, raising revenue was a motive that was definitely considered. The committee minutes reflect the following statement by Rep. Robert Miller: ‘The taxes would provide a way to tax part of the flourishing underground economy that is normally operating on a tax-free basis.’ Hearings on HB-2140 before the House Taxation Committee, 1987 Session. Other testimony before the committee reflects similar goals, including suggestions that the revenue collected be used not only to combat illegal drug usage but also for a program for the prevention, education, and rehabilitation of those adversely affected by the drug trade." 14 Kan. App. 2d at 640.
Matson upheld the constitutionality of the statute “[bjecause revenue collection is one of the objectives of the statute and because imposition of the tax does not expressly depend on the illegal nature of the sale or possession of marijuana.” 14 Kan. App. 2d at 640. The brief of amicus curiae Kansas Department of Revenue (KDR) states that over one-half million dollars in drug tax was collected in both fiscal year 1993 and fiscal year 1994. This court addressed an identical argument in State v. Berberich, 248 Kan. 854, 811 P.2d 1192 (1991). The court quoted heavily from Matson and relied on Sanchez in concluding the Kansas drug tax does not violate due process and is constitutionally valid. In relying on Sanchez, the court stated:
“In United States v. Sanchez, 340 U.S. 42, 95 L. Ed. 47, 71 S. Ct. 108 (1950), the United States Supreme Court held that the tax imposed by § 2590(a)(2) of the Internal Revenue Code (now repealed) of $100 per ounce on all transfers of marijuana to any person who has not paid the special tax and registered under §§ 2590 and 2591 of the Code was not invalid, despite the regulatory effect and the close resemblance to a penalty, merely because Congress, in enacting the tax statute, had the objective, in addition to raising revenue, to render extremely difficult the acquisition of the drug by persons who so desire for illicit uses and to develop adequate means of publicizing dealing in the drug in order to tax and control the traffic effectively. The civil character of the tax thus imposed is not altered by its severity in relation to the tax assessed. A tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activity taxed, even though the revenue obtained is obviously negligible or the revenue purpose of the tax is secondary. Even though the transferor becomes liable for a tax imposed upon the transfer of marijuana if the transferee fails to pay, the tax is a civil rather than a criminal sanction where the transfer is not made unlawful by the taxing statute, particularly where it provides a civil procedure for collection, thus indicating an intention of Congress that the tax be treated as such, and the Government seeks to collect the levy by a judicial proceeding with its attendant safeguards.” 248 Kan. at 866.
As indicated earlier, the defendant does not assert that the Act is unconstitutional on its face but contends that assessment and collection of the tax constitutes punishment which precludes, as a violation of the Double Jeopardy Clause, her criminal prosecution. The Kansas appellate courts have not specifically addressed whether assessment of the drug tax constitutes punishment for purposes of the Double Jeopardy Clause. The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).
In State v. Cady, 254 Kan. 393, 867 P.2d 270 (1994), we described the effect and application of the Double Jeopardy Clause as follows:
“The Double Jeopardy Clause of the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of § 10 of the Kansas Constitution Bill of Rights is very similar to the language contained in tire Fifth Amendment to the United States Constitution. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights. Therefore, the underlying protection contained in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of tire Kansas Constitution Bill of Rights.” 254 Kan. at 396-97.
We now turn to the issue before us. Did the assessment and collection of the Kansas drug tax constitute a criminal punishment which bars any further prosecution of the defendant as a violation of the Double Jeopardy Clause? The trial court held that it did, basing its determination on the decision in Kurth Ranch.
The United States Supreme Court in Kurth Ranch held that a tax on the possession of illegal drugs assessed after the State had imposed a criminal penalty for the same conduct constituted a second punishment in violation of the Double Jeopardy Clause. Kurth Ranch considered the effect and application of the Montana Dangerous Drug Tax Act, which imposed a tax on the “possession and storage of dangerous drugs.” The taxpayer was required to file a return within 72 hours of arrest. There was no obligation to file a return or pay any tax unless and until a taxpayer was arrested. The tax was to be collected only after any state or federal fines or forfeitures had been satisfied. The tax rate was either 10 percent of the drug’s assessed market value or a specified amount per ounce ($100 per ounce for marijuana), whichever was greater. Tax proceeds were to be allocated between substance abuse programs and enforcement of drug laws. 128 L. Ed. 2d at 773-74.
Under the facts of Kurth Ranch, a Montana district court convicted and sentenced six members of the Kurth family for drug crimes arising out of their operation of a marijuana farm. In a separate proceeding, the Montana Department of Revenue attempted to collect a tax on the marijuana. The defendants challenged the constitutionality of the assessment, and the lower courts found the assessment invalid under the Double Jeopardy Clause. In determining whether the assessment was subject to the constraints of the Double Jeopardy Clause, the United States Supreme Court analyzed whether the tax should be characterized as a punishment.
Initially, the Court recognized that while the unlawfulness of an activity does not prevent its taxation, “ ‘there comes a time . . . [when a] so-called tax . . . loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’ ” 128 L. Ed. 2d at 778 (quoting Magnamo Co. v. Hamilton, 292 U.S. 40, 44, 78 L. Ed. 1109, 54 S. Ct. 599 [1934]). Next, the Court noted that “neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment,” although those factors were consistent with a characterization of the tax as punishment. 128 L. Ed. 2d at 779. The Court found the Montana tax was remarkably high, as a significant part of the assessment was more than eight times the drug’s market value. Additionally, the Court found the deterrent purpose of the tax was beyond question. However, the Court then focused on two “unusual features” of the Montana tax which set it apart from most taxes and which the Court relied upon in holding the tax violated the Double Jeopardy Clause.
First, the tax was conditioned upon the commission of a crime. The Court recognized that in Sanchez it had “relied on the absence of such a condition to support its conclusion that a particular federal tax was a civil rather than a criminal sanction.” 128 L. Ed. 2d at 780. The Court described the Montana tax:
“[T]he tax assessment not only hinges on the commission of a crime, it also is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in die first place. Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.” 128 L. Ed. 2d at 780.
The Court explained that taxes imposed on illegal activities are different from taxes with pure revenue raising purposes or mixed-motive taxes which are intended to deter an activity and raise money. The justifications for mixed-motive taxes do not apply to taxes based solely on illegal activity because revenue could as easily be raised by increasing the fine imposed upon conviction. 128 L. Ed. 2d at 780.
The second unusual feature of the Montana tax was that, although it was purportedly a property tax on “the possession and storage of dangerous drugs,” it was levied on goods the taxpayer neither owned nor possessed when imposed. 128 L. Ed. 2d at 781. Because the tax was not assessed until and unless a taxpayer was arrested, the drugs presumably were already destroyed or no longer possessed by the taxpayer when the tax was imposed. The Court found this kind of tax “imposed on criminals and no others” departed so far from normal revenue laws as to become a form of punishment. 128 L. Ed. 2d at 781. The Court concluded: “Taken as a whole, this drug tax is a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis.” 128 L. Ed. 2d at 781.
Because the tax was a punishment and imposed in a separate proceeding, the Court held it placed the defendants in double jeop ardy. The Court concluded the tax must be imposed during the first prosecution or not at all. 128 L. Ed. 2d at 781-82. It stated: “Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or, indeed, if it had assessed the tax in the same proceeding that resulted in his conviction.” 128 L. Ed. 2d at 778. The Court, however, reserved the question “whether an ostensibly civil proceeding that is designed to inflict punishment may bar a subsequent proceeding that is admittedly criminal in character.” 128 L. Ed. 2d at 780 n.21. Likewise, in view of the result hereinafter reached, we do not need to consider that question. For a critical analysis of Kurth Ranch, see The Supreme Court — Leading Cases, 108 Harv. L. Rev. 139, 171 (1994).
The question for this court is whether the Kansas drug tax has such punitive characteristics that it is subjected to the constraints of the Double Jeopardy Clause. Like the Montana tax, the Kansas tax has a primarily deterrent purpose and the Kansas tax rate of approximately $100 per ounce is comparable to the Montana rate, which was more than eight times the market value of a significant portion of the drugs. 128 L. Ed. 2d at 779 n.17. It should also be noted that the tax upheld in Sanchez was $100 per ounce. Additionally, as amicus curiae points out, there is no evidence in this case regarding the relationship of the assessment to the market value of the marijuana or any other benchmark. The market value can vary depending on a number of factors, such as quality, supply and demand, and volume sold. In Kurth Ranch, Chief Justice Rehnquist notes in his dissent that the majority focuses on the value of the low-grade “shake” and “glosses over” the fact that the tax imposed on the higher-quality “bud” amounted to only 80 percent of its market value. 128 L. Ed. 2d at 785-86. In the present case there is simply no evidence on this point. The defendant also argues the tax rate is high because the tax stamps are valid for only three months. Presumably, the short life span of the tax stamps reflects the legislature’s recognition of the rapid turnover rate of illicit drugs. Nevertheless, assuming that the rate is high, the facts of “a high tax rate and deterrent purpose . . ., in and of them selves, do not necessarily render the tax punitive.” 128 L. Ed. 2d at 779.
In Kurth Ranch, the Court, in finding a double jeopardy violation, relied upon certain unusual features of the Montana drug tax statutes which set them apart from most tax statutes. Absent these unusual features the Court, apparently, would not have found the Montana tax violated the Double Jeopardy Clause.
The initial “unusual feature” of the Montana tax was that it was conditioned on the commission of a crime. Although the Kansas drug tax applies only to those who unlawfully possess more than minimum quantities of marijuana or other controlled substances, unlike the Montana tax, assessment of the Kansas tax does not directly rest on criminal conduct. First, the tax does not apply to everyone who illegally possesses drugs. It only applies to those possessing illegal drugs in larger quantities in response to legislative concern that this flourishing underground economy not operate on a tax-free basis. In Matson, the defendant contended the Kansas tax was “in reality a criminal penalty, and as such ... an unconstitutional denial of due process under the Fourteenth Amendment.” 14 Kan. App. 2d at 637. After recognizing that the primary purpose of the tax was to combat drug usage, the court went on to hold: “Because revenue collection is one of the objectives of the statute and because imposition of the tax does not expressly depend on the illegal nature of the sale or possession of marijuana, we hold that the statute is constitutionally valid under the United States Constitution.” 14 Kan. App. 2d at 640.
In Berberich, the defendant requested that we overrule the holding in Matson, making the same argument that the tax constituted a criminal penalty. We declined to do so. 248 Kan. at 863-68.
The Montana tax, on the other hand, was not only expressly dependent upon the commission of a crime and the illegal nature of the drugs, it did not even give rise to taxation until “after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place. Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.” 128 L. Ed. 2d at 780. The Kansas tax is levied on the possession of drugs regardless of whether the taxpayer has been arrested for criminal conduct. The tax is due immediately upon acquisition or possession of marijuana in the state; criminal prosecution is not required. Significantly, the taxpayer is not required to expose his or her identity to comply with the tax, and any information obtained through compliance with the Act is confidential and cannot be used against the taxpayer in a criminal proceeding other than enforcement of the Act itself. Nor are law enforcement officers required to report drug arrests to KDR. The Director of Taxation assesses the tax based on personal knowledge or information available.
The second “unusual feature” of the Montana tax, relied upon by the Court, was that it was a property tax on confiscated goods which was only levied on the taxpayer after the taxpayer no longer owned or possessed the drugs. The Court explained:
“The Montana tax is exceptional for an additional reason. Although it purports to be a species of property tax — that is, a ‘tax on the possession and storage of dangerous drugs,’ Mont. Code Ann § 15-25-111 (1987) — it is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed. Indeed, die State presumably destroyed the contraband goods in this ease before the tax on them was assessed. . . . A tax on ‘possession’ of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character. This tax, imposed on criminals and no others, departs so far from normal revenue laws as to become a form of punishment.” 128 L. Ed. 2d at 780-81.
The Kansas tax is due and owing upon acquisition or possession of a specified amount of unlawful drugs in the state and is intended to be assessed when the taxpayer is in possession of the property.
The Court of Appeals in Matson, and this court in Berberich, determined that the Kansas drug tax did not impose a criminal penalty on the taxpayer/criminal defendants. The issue on appeal in the present case is whether the recent decision in Kurth Ranch requires a different result. The defendant, of course, asserts that it does, while the State takes the position that the narrow holding in Kurth Ranch, based upon “unusual features” of the Montana tax not present in our statutes, does not require a finding that the Kansas tax constitutes a criminal penalty for double jeopardy purposes.
In response to Kurth Ranch, other jurisdictions have faced similar arguments. In Milner v. State, 658 So. 2d 500 (Ala. Civ. App. 1994), rev. denied March 3, 1995, the court summarily concluded that the two unusual features of the Montana tax did not exist in Alabama’s drug tax and the holding in Kurth Ranch had no application. The drug tax was levied on the possession of drugs, regardless of whether criminal charges were filed against the taxpayer. The second feature was distinguishable because the Alabama tax was an excise tax on the dealer and not a property tax on confiscated goods. The Alabama tax statutes are similar to the Kansas statutes. Milner had been arrested in August 1992 for possession of marijuana and subsequently pled guilty to the federal criminal charges in September 1993. In December 1992 the Alabama Department of Revenue executed a final jeopardy tax assessment against Milner in excess of $31,000 for failure to purchase and affix drug stamps to the same marijuana that was the basis of the federal criminal charges. The Alabama court reviewed two earlier cases, Hyatt v. State Dept. of Revenue, 597 So. 2d 716 (Ala. Civ. App. 1992), and Briney v. State Dept. of Revenue, 594 So. 2d 120 (Ala. Civ. App. 1991), which had upheld the tax against double jeopardy arguments, and went on to state:
“Milner suggests that we revisit Hyatt and Briney due to a recent decision of the Supreme Court. Dep’t. of Revenue of Montana v. Kurth Ranch, 511 U.S. -, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994).
“In Kurth Ranch the Supreme Court held that Montana’s drug tax statute constituted a second punishment for double jeopardy purposes and was therefore unconstitutional. In reaching that decision, the Supreme Court focused on two unusual features of the Montana tax statute.
“The first feature which concerned the Court was that the tax was conditioned on the commission of a crime. The tax was levied only on individuals arrested for possession of drugs. The second feature which concerned the Court was that tire tax was assessed on confiscated goods. The Court’s concern was that file tax was imposed on properly that had been confiscated and was no longer in the taxpayer’s possession.
“Alabama’s drug tax is distinguishable from Montana’s drug tax. The two features of the Montana tax that the Supreme Court was interested in do not exist in Alabama’s drug tax. In Alabama the drug tax is levied on the possession of drugs, regardless of whether there is a criminal charge against the taxpayer. No criminal prosecution is required. [Citations omitted.] Furthermore, Alabama’s tax is an excise tax on the dealer and not a property tax on confiscated goods.
“Due to these distinctions, we find that the holding in Kurth Ranch has no application to Alabama’s drug tax. Concerning the double jeopardy issue, we stand on our prior holdings in Hyatt and Briney.” 658 So. 2d at 501-02.
In a recent and more thoroughly considered opinion, the Iowa Supreme Court addressed the issue now before us in a nearly identical case. In State v. Lange, 531 N.W.2d 108 (Iowa 1995), the defendant was arrested for the manufacture of marijuana after two potted marijuana plants were found in his apartment following a consensual search of the premises. There were no drug tax stamps affixed to either plant. The State filed an information against Lange charging him with manufacture of a controlled substance. Several months later, the State filed a second complaint accusing Lange of failure to affix a drug tax stamp to the marijuana which formed the basis for the first charge.
Lange was found guilty on the charge of manufacturing inarijuana prior to any trial on the drug tax stamp charge. At a bench trial the court found Lange guilty of the drug tax stamp charge, but Lange challenged the entry of judgment on his conviction, asserting that as he had paid $1,085 in drug tax assessments prior to trial any subsequent punishment would violate his right against double jeopardy. His challenge was denied, and the court imposed a sentence on the drug tax stamp charge. Lange appealed asserting several issues, including double jeopardy based upon Kurth Ranch.
Because of the similarity in the facts, statutes, arguments, and issues in Lange and our present case, we quote at length from the Iowa decision. The court stated:
“Lange’s third contention is that his sentence on the drag tax stamp conviction constituted double punishment in violation of his right against double jeopardy. For that reason, he believes the district court erred when it imposed a second punishment based on the same offense. Lange bases the double punishment contention on the fact that before his sentence on the drug tax stamp conviction,-hehad been assessed and had paid $1085 in drug tax stamp assessments. These assessments were on the drags that formed the basis for the drug tax stamp charge and conviction. Lange made this same contention and cited the assessment to the sentencing judge. In support of his contention, Lange cited In re Kurth Ranch, 986 F.2d 1308 (9th Cir. 1993).
“In re Kurth Ranch has since reached the United States Supreme Court. See Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S._, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). In Montana Department of Revenue v. Kurth Ranch, the Supreme Court had a Montana statute before it that imposes a tax ‘on the possession and storage of dangerous drugs.’ Id. at_, 114 S. Ct. at 1941, 128 L. Ed. 2d at 773. This statute expressly provides that the tax is to be ‘collected only after any state or federal fines or forfeitures have been satisfied.’ Id. at_, 114 S. Ct. at 1941, 128 L. Ed. 2d at 773. The tax is either ten percent of the assessed market value of the drugs or a specified amount depending on the drug ($100 per ounce for marijuana). Under agency rules, taxpayers must file a return -within seventy-two hours of their arrest. The taxpayer has no obligation to file a return or to pay any tax unless and until the taxpayer is arrested. The Montana statute presented the Supreme Court with tire following question: ‘whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for file same conduct may violate the constitutional prohibition against successive punishments for tire same offense.’ Id. at_, 114 S. Ct. at 1941,128 L. Ed. 2d at 772-73. This is the same double jeopardy argument Lange raises with us. See id. at-n.l, 114 S. Ct. at 1941 n. 1,128 L. Ed. 2d at 773 n. 1 (Double Jeopardy Clause of Fifth Amendment to federal Constitution protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense). The question turned on ‘whether the tax has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.’ Id. at_, 114 S. Ct. at 1945, 128 L. Ed. 2d at 778.
“The Supreme Court began its analysis by ‘noting that neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax as a form of punishment.’ Id. at-, 114 S. Ct. at 1946, 128 L. Ed. 2d at 779. Yet, the Court recognized these attributes as consistent with a punitive character. The Court, however, stopped short of saying these attributes in and of themselves render tire tax punitive. Id. at_, 114 S. Ct. at 1946-47, 128 L. Ed. 2d at 779-80.
“The Court zeroed in on the two attributes of the Montana statute that did render it punitive and violative of the Double Jeopardy Clause. First, the tax is conditioned on the commission of a crime. The Court saw this condition as ‘significant of penal and prohibitory intent rather than the gathering of revenue.’ Id. at-, 114 S. Ct. at 1947,128 L. Ed. 2d at 779-80. Significantly, the Court said:
‘In this case, the tax assessment not only hinges on the commission of a crime, it also is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place. Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.’
Id. at_, 114 S. Ct. at 1947,128 L. Ed. 2d at 780.
“Second, while the statute characterized the tax as a property tax — that is a tax on the possession and storage of dangerous drugs — the Court noted that the tax is actually levied on goods the taxpayer neither owns nor possesses when the tax is imposed. Id. at-, 114 S. Ct. at 1948, 128 L. Ed. 2d at 780-81. On this point, the Court reasoned this way:
‘Indeed, the State presumably destroyed the contraband goods in this case before the tax on them was assessed. If a statute that amounts to a confiscation of property is unconstitutional, a tax on previously confiscated goods is at least questionable. A tax on “possession” of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character. This tax, imposed on criminals and no others, departs so far from normal revenue laws as to become a form of punishment.
‘Taken as a whole, this drug tax is a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of double jeopardy analysis.’
Id. at_, 114 S. Ct. at 1948, 128 L. Ed. 2d at 781 (citations omitted).
“Our drug tax stamp statute had neither characteristic that the Supreme Court found punitive in the Montana statute. Iowa Code section 421A.1(3) imposes the tax on a dealer and makes tire tax due and payable immediately upon manufacture, production, acquisition, pinchase or possession by a dealer. A ‘dealer’ is defined as
‘any person who ships, transports, or imports into this state or acquires, purchases, possesses, manufactures, or produces in tills state any of the following:
‘a. Seven or more grams of a taxable substance other than marijuana, but including a taxable substance that is a mixture of marijuana and other taxable substances.
‘b. Forty-two and one-half grams or more of a substance consisting of or containing marijuana.
‘c. Ten or more dosage units of a taxable substance which is not sold by weight.’
Iowa Code § 421A.1(3). As this statute makes clear, no tax is imposed unless certain threshold limits are reached. For example, in the case of marijuana, no tax is imposed below forty-two and one-half grams. And, in the case of marijuana, the rate of tax above this amount is five dollars for each gram or portion of a gram. Iowa Code § 421A.7. So a person may possess a controlled substance illegally but still not be subject to the tax.
“The Iowa director of revenue and finance has the statutory obligation to assess and collect the tax after the director learns that a drug tax stamp was required but not purchased. See Iowa Code § 421A.9. The director collects the tax in the same manner as provided for the collection of delinquent income taxes. Id.
“Unlike the Montana tax, the imposition of the Iowa tax is therefore not conditioned on the commission of a crime. Nor is it exacted only after the taxpayer is arrested.
“Moreover, in State v. Gallup, 500 N.W.2d 437 (Iowa 1993), we held that the tax under section 421A-7 — and an additional penalty for failure to pay the tax under section 421A.12 — did not impose additional punishment for criminal conduct in'violation of due process. Rather, we held that such a tax and penalty were a legitimate tax and civil sanction that were not conditioned on commission of a crime. Id. at 444-45. ....
“In Gallup, we concluded our drug tax stamp statute was no different than the federal marijuana statute that was upheld in United States v. Sanchez, 340 U.S. 42, 71 S. Ct. 108,95 L. Ed. 47 (1950). Id. at 445. (We see no substantial difference between chapter 421A and the federal marijuana statute that was upheld in Sanchez. We view the chapter 421A tax and penalty as civil, rather than as criminal, sanctions and as a proper exercise of the State’s taxing power.’)
“In Kurth Ranch, the Supreme Court relied on Sanchez to support its analysis that a tax conditioned on the commission of a crime is a criminal rather than civil sanction. The Court, referring to Sanchez, noted that the Court ‘has relied on the absence of such a condition to support its conclusion that a particular federal tax was a civil rather than a criminal sanction.” Kurth Ranch, 511 U.S. at_, 114 S. Ct. 1947, 128 L. Ed. 2d at 780. In a footnote to this statement the Court said:
‘In Sanchez we examined a federal marijuana tax [since repealed] that taxed the transfer of marijuana to a person who has not paid a special tax and registered. Under the statute, the transferor’s liability arose when the transferee failed to pay the tax; as a result, “[s]ince his tax liability does not in effect rest on criminal conduct, the tax can be properly called a civil rather than a criminal sanction.” 340 U.S. at 45, 715 S. Ct. at 110, 95 L. Ed. at 50.
Id. at_ n.20, 114 S. Ct. at 1947 n.20, 128 L. Ed. 2d at 780 n.20.
“In contrast to the Montana tax, the Iowa drug stamp tax is imposed immediately upon manufacture, production, acquisition, purchase, or possession of the controlled substance. See Iowa Code § 421A.3. The Iowa tax, therefore, is not— like the Montana tax — imposed on goods a taxpayer neither owns nor possesses.
“We conclude the Iowa drug stamp tax statute is not a criminal penalty. Because it is not a criminal penalty, the sentence on the drug tax stamp conviction did not constitute a second punishment violative of Lange’s right against double jeopardy.” 531 N.W.2d at 115-17.
We recognize at least two state courts in other jurisdictions have concluded differently; however, those decisions are currently pending review. We agree with the Iowa court’s analysis and reasoning. The Kansas Drug Tax Act is significantly different than the Montana tax Act considered in Kurth Ranch. The Kansas Act does not contain the “unusual features” upon which the court relied in Kurth Ranch, and we conclude that the Kansas drug tax does not impose a criminal penalty for double jeopardy purposes. We adhere to the earlier decisions in Matson and Berberich. The trial court erred in finding further prosecution of the complaint against the defendant would subject her to double jeopardy.
The judgment is reversed, and the case is remanded to the district court for further proceedings.
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The opinion of the court was delivered by
McFarland, J.:
Jeffrey A. Spresser appeals his jury trial convictions of rape (K.S.A. 21-3502), aggravated kidnapping (K.S.A. 21-3421), and aggravated criminal sodomy (K.S.A. 21-3506).
C.M. and her husband met defendant at a Topeka bar where the latter worked as manager. The three became friends and defendant frequently visited the couple's residence. In October 1991 C.M.'s husband commenced serving a prison term, and C.M. returned to her parents' home in Lawrence. C.M.’s father died on August 12, 1992. During the early evening of August 27, 1992, defendant telephoned C.M., stating he had been out-of-state and had just learned of the death of C.M.’s father. Defendant asked if he could help C.M. or her mother in any way. Then he asked C.M. out to dinner. C.M. was undecided on the invitation and asked defendant to call back. When defendant called back, C.M. accepted and defendant came by for her at her mother’s home. The two then proceeded to the Flamingo, a Lawrence bar.
At approximately 11:30 p.m. they left the Flamingo. C.M. wanted to go home (the Lawrence residence of her mother). Defendant wanted C.M. to go with him to pick up his daughter in Topeka. When defendant drove past C.M.’s residence, she again stated that was where she wanted to go. Defendant continued to Topeka. C.M. testified defendant struck her several times while they were en route and forced her to perform oral sex on him. Defendant drove to his trailer in Topeka, pulled C.M. from the truck and walked her inside the trailer. There he demanded and received oral sex. He struck C.M. repeatedly about the head. C.M. started gagging and went into the bathroom. Defendant entered the bathroom and took C.M. down the trailer’s hallway to a dark bedroom.
Defendant then stripped off C.M.’s clothes and put some of his fingers in her vagina. C.M. was beaten until she passed out. When she awoke she found herself on the bed with her hands tied. Defendant untied her and told her to get dressed, and that he would take her home. In Douglas County on the way to Lawrence, defendant forced C.M. to perform another act of oral sex and attempted to have sexual intercourse with her. Defendant left C.M. at her mother’s house with the warning that if she told anybody about what had happened he would kill her and her mother.
The police were called and C.M. was taken to a Lawrence hospital. She had multiple trauma signs on her head and face. Defendant was charged with and convicted of aggravated kidnapping, rape, and aggravated criminal sodomy.
MOTION IN LIMINE
For his first issue, defendant contends the trial court’s denial of his motion in limine constitutes an abuse of judicial discretion. The testimony sought to be excluded concerned an incident in the truck while defendant.and C.M. were on their way to the Flamingo. C.M. said that, upon seeing a, Lawrence police car, defendant stated there was a warrant out.for his arrest and that if the officer stopped defendant’s pickup, he would shoot, the officer.
At the hearing on the motion, defendant argued that C.M. did not actually see a weapon and that testimony about other troubles with the law was prejudicial to the., defendant. The State argued that the statement was pertinent tp C.M.’s state of mind as force and fear were elements which had to be proven. .The trial court agreed with the State. T,he objection was renewed at trial. The State again stated the statement was relevant, to C.M.’s state of mind. The court held the evidence was relevant “as long as it’s tied up.” At the conclusion of C.M.’s testimony, defense counsel sought a mistrial; stating: .
“There was no testimony that I can recall from [C.M.] that indicated that his statement- about -having a warrant out. for him or .about a threat to the .police officers if stopped had anything to do with the,fe.ar or the force which was used to commit these alleged crimes. It was just simply thrown out there. It was never tied up the way the State made the proffer to the Court. And consequently, they succeeded in admitting prejudicial testimony which was riot related to the offense or the force or the threat which'is the elemérit of the offensés' of which Mr. Spresser is charged. So I request a mistrial.” , ■
The State acknowledged that C.M. did not specifically ti,e in. her testimony to defendant’s comment about shooting the .police officer if he was stopped, “but she emphasized more and more about how scared she was and her state of mind as far as her fright of this defendant . . . . She made it perfectly clear about her fright.”
The court, after noting that it had thought that C.M.’s. state of mind was going to be tied in to some reference to the incident and that “it didn’t play like I thought it .should or anticipated it would play,” found that the statement, nevertheless, was probative. Defense counsel then renewed his motion in limine as to the testimony of any police officer regarding C.M.’s reference to defendant’s statement. The court overruled that objection, stating that the evidence was relevant to C.M.’s credibility. The court overruled defense counsel’s contemporaneous, objection when Officer Wempe testified regarding the statement.
The abuse of discretion standard is applied in reviewing a motion in limine. The admission or exclusion of evidence is in the sound discretion of the trial court. State v. Rowell, 256 Kan. 200, Syl. ¶ 2, 883 P.2d 1184 (1994). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Baker, 255 Kan. 680, Syl. ¶ 9, 877 P.2d 946 (1994).
In State v. Massey, 242 Kan. 252, 265, 747 P.2d 802 (1987), we stated that a motion in limine should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence, and (2) the mere offer of or statements made during the trial concerning the material will tend to prejudice the jury.
The crux of defendant’s argument is that unless the victim made reference specifically to the complained-of statements as a basis for her fright or fear, the same were inadmissible as the State indicated there would be such testimony. It is true the State advised the trial court there would be such a tie-in in C.M.’s testimony and the trial court denied the motion based upon the anticipated tie-in. However, such a specific tie-in was unnecessary for the admissibility of the testimony.
Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction and is not rendered inadmissible because it may disclose other or independent offenses. The law allows the admission of evidence as part of the res gestae of acts made before, during, or after the principal event. State v. Bowman, 252 Kan. 883, Syl. ¶¶ 2, 5, 850 P.2d 236 (1993). If the evidence is a part of the res gestae of the offenses for which a defendant is being tried, such evidence may be introduced independent of K.S.A. 60-455. See State v. Gilder, 223 Kan. 220, 228, 574 P.2d 196 (1977).
Acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary, or logical connections between the evidence and the inference or result which it is designed to establish. State v. Davis, 236 Kan. 538, 539, 694 P.2d 418 (1985).
For lack of a better term, the “date” between defendant and the victim was the occurrence from which the crimes herein arise. For res gestae purposes, the date is not a series of segments. It is not necessary that there be specific cause-and-effect testimony for the complained-of statement to be admissible as to a victim’s state of mind. With the res gestae concept, testimony as to what was said or done is admissible because it was said or done. The defendant had the burden of showing why such admissible testimony should be excluded. This he has not done. The trial court may have unnecessarily relied upon the State’s promised specific tie-in of testimony to support its ruling, but this does not affect the propriety of its determination.
We find no error or abuse of discretion in the trial court’s denial of defendant’s motion in limine and motion for a mistrial.
PROSECUTORIAL MISCONDUCT
In his next issue, defendant contends that a statement made by the prosecutor during closing arguments was so prejudicial that, despite a judicial admonition to the jury to disregard the statement, the conviction must be reversed. We do not agree.
During the defendant’s closing argument, the following occurred:
“[DEFENSE COUNSEL]: You don’t send somebody to prison or subject them to the possibility — you are not to consider—
“[STATE’S ATTORNEY]: Your Honor, I object.
“[DEFENSE COUNSEL]: — you are not to consider punishment. I don’t mean to get into that. I’ll get away from that.
“[STATE’S ATTORNEY]: Thank you.
“[DEFENSE COUNSEL]: You don’t send somebody to prison for a crime unless you are dam sure.”
In the second half of the State’s closing argument, the prosecutor responded to these comments as follows:
“[STATE’S ATTORNEY]: . . . [A]nd you are not supposed to consider disposition. So when he [defense counsel] said send anyone to prison, we don’t know— that is for the Court to decide. You are not to consider the disposition. At the same time you may have other victims’ Ufes [sic] in your hands if we release him.
“[DEFENSE COUNSEL]: Objection, Your Honor.
“THE COURT: Sustained, disregard the last comment of the prosecutor.” (Emphasis supplied.)
The emphasized portion in the preceding quote is the claimed prosecutorial misconduct.
The State’s position is that (1) the prompt recognition by the trial court of the objectionable aspect’s of the State’s comment by sustaining defendant’s objection and admonishing the jury to disregard the comment cured any possible prejudice to the defendant; and (2) the State was merely responding to previous arguments of defense counsel, noting that there is no prejudicial error where a prosecutor’s questionable statements were provoked and made in response to previous arguments of defense counsel. See State v. Robinson, 219 Kan. 218, 221, 547 P.2d 335 (1976).
In State v. Duke, 256 Kan. 703, 718-20, 887 P.2d 110 (1994), we reviewed the rules concerning a prosecutor’s role in closing arguments:
“In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial. State v. Green, 254 Kan. 669, 685, 867 P.2d 366 (1994).
“In closing argument to the jury, the prosecutor should not use statements calculated to inflame the passions or prejudices of the jury. The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict. State v. Kelley, 209 Kan. 699, 704, 498 P.2d 87 (1972). In closing argument, an attorney may indulge in impassioned bursts of oratory or may use picturesque language as long as he or she introduces no facts not disclosed by the evidence. State v. Majors, 182 Kan. 644, 648, 323 P.2d 917 (1958).
“In summing up a case before a jury, the prosecutor may not introduce or comment on the facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it. State v. Zamora, 247 Kan. 684, 687-88, 803 P.2d 568 (1990). Counsel may appeal to tlie jury with all the power and persuasiveness his or her learning, skill, and experience enable counsel to use. State v. Baker, 219 Kan. 854, Syl. ¶ 9, 549 P.2d 911 (1976).”
The State concedes the complained-of sentence was improper. We do not find that it may be excused on the basis of provocation.
Does the improper comment require reversal? We believe not.
Defendant cites State v. Zamora, 247 Kan. 684, 803 P.2d 568 (1990), in support of his position. In Zamora, the prosecutor, in closing argument, stated: “He [Zamora] has raped this victim once. If he is found not guilty, he will get away with it again.” 247 Kan. at 689. Zamora objected. The trial court overruled the objection. We found reversible error therein, reasoning:
“In the case at bar, die prosecutor’s statement was improper. The statement transcends the limits of fair discussion of the evidence. Rather than sustaining Zamora’s objection and instructing die jury to disregard the remarks, the trial court overruled Zamora’s objection. The result is prejudicial error.” 247 Kan. at 690.
In the case before us, the trial court sustained defendant’s objection and instructed the jury to disregard the remarks. Therefore, State v. Zamora, 247 Kan. 684, may be distinguished.
In State v. Jordan, 250 Kan. 180, 825 P.2d 157 (1992), the prosecutor argued to the juiy: “And if you want to Uve in a community where a person can kill another person ... in the manner that this was conducted and excuse it because he had a few drinks, that’s up to you.” 250 Kan. at 193. The trial court sustained the defendant’s objection that the prosecutor was trying to inflame the jury.
We agreed that the prosecutor’s argument was improper and noted that the argument violated the Model Rules of Professional Conduct. 250 Kan. at 196. However, we held that the violation was not reversible error because the jury was instructed several times during closing argument that statements of counsel were not evidence. Further, the trial court had sustained the objection to the remark, and we noted that the defendant had not requested a mistrial or that the jury be admonished to disregard that remark. 250 Kan. at 197.
In State v. Perales, 220 Kan. 777, 556 P.2d 172 (1976), the prosecutor stated during closing argument that the defendant committed the crime and would do it again unless he was convicted. The defendant objected. The trial court sustained the objection and instructed the jury as follows: ‘1 will sustain that objection to the extent, members of the jury, that what might happen in the future is pure conjecture and not to be considered.” 220 Kan. at 780. We found that the prompt action of the trial court cured any possible prejudice to the defendant, quoting the rule from State v. Warbritton, 215 Kan. 534, Syl. ¶ 1, 527 P.2d 1050 (1974): " Improper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.' ” 220 Kan. at 780. The trial court’s instruction in Perales was held to have cured any possible prejudice to the defendant.
In State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993), the prosecutor, in closing argument, stated:
“[MR. HOFFMAN]: Ladies and gentlemen of the jury, do not allow this conduct to be tolerated in our county.
“MR. SACHSE [defense counsel]: Judge, I’m objecting. That is absolutely improper argument and I’m pretty sure that the prosecutor’s well aware of that.
“THE COURT: Let’s wind it up.
“MR. HOFFMAN: Thank you. Send that message, ladies and gentlemen, come back with a verdict of guilty. Thank you.” 252 Kan. at 631.
Defendant argued that the prosecutor’s statement violated her right to a fair trial and American Bar Association Standards for prosecutors by injecting an issue broader than guilt. Defendant further argued that the error was not harmless because the State’s evidence was not conclusive and the trial court’s failure to sustain defense counsel’s objection implied to the jury that the statement was proper. 252 Kan. at 635.
This court found reversible error, reasoning:
“The prosecutor is under a duty to insure that only competent evidence is submitted to the jury. Above all, the prosecutor must guard against anything that could prejudice the minds of the jurors and hinder them from considering only the evidence adduced. The prosecutor’s statement was improper and transcends the limits of fair discussion of die evidence. The improper remark by the prosecutor in his summation to the jury would not have provided a basis for reversal of Ruff’s conviction if the trial judge, rather than approving the remark after defense counsel objected, had instructed the jury to disregard the remark. Under these circumstances, a general instruction given prior to the improper statement that statements and remarks of counsel are not evidence and should not be considered as evidence does not protect tire defendant’s right to a fair trial.” 252 Kan. at 636.
Although we have recognized there may be remarks that are so prejudicial as to be incurable, neither the briefs of counsel nor our research has disclosed a case where we have held the remark to be incurable. The facts herein do not support declaring the improper remark to be the first incurable remark in our case law. It is difficult to understand why such an experienced prosecutor as the Shawnee County District Attorney would make such a patently improper comment in closing argument, but that fact does not alter the outcome of this issue. We find no reversible error in this issue.
LESSER INCLUDED OFFENSE
The defendant requested that the jury be instructed on unlawful restraint (K.S.A. 21-3424) as a lesser included offense of aggravated kidnapping. For his next issue defendant contends the trial court’s denial of this request constitutes reversible error. We do not agree.
A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theoiy of guilty on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense. State v. Deggs, 251 Kan. 342, 344, 834 P.2d 376 (1992); State v. Dixon, 248 Kan. 776, Syl. ¶ 1, 811 P.2d 1153 (1991).
The instruction on the elements of aggravated kidnapping provided, in pertinent part, that the State had to prove:
“1) That the defendant, Jeffrey Allen Spresser, intentionally took and/or confined [C.M.] by force or threat of force;
“2) That this act was done with the intent to hold [C.M.] to inflict bodily injury;
“3) That bodily harm was inflicted on [C.M.]; and
“4) That this act occurred on or about the 28th day of August, 1992, in Shawnee County, Kansas.”
The instruction on unlawful restraint proposed by defendant provided, in pertinent part:
“To establish this charge each of the following claims must be proved:
“1. That the defendant knowingly and without legal authority restrained [C.M.] so as to interfere substantially with her liberty; and
“2. That this act occurred on or about the 28th day of August, 1992, in Shawnee County, Kansas.”
Defendant does not argue that unlawful restraint was a crime necessarily proven under State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). Rather, defendant argues that under the facts herein, the jury could have found that there was no aggravated kidnapping of C.M., only the unlawful restraint of her person. Unlike many sex crime cases, this contention does not arise out of the factual situation that the defendant and the victim have testified to different versions of what transpired between them. In the case before us, the defendant did not testify, so there is no defendant’s version. Rather, the defendant relies on the following facts. The State in its closing argument stated that the aggravated kidnapping commenced when defendant took C.M. from the bathroom to the bedroom. The act of aggravated criminal sodomy for which defendant was being tried was the sodomy which occurred in the living room of the trailer. This occurred prior to the State’s theory of when the aggravated kidnapping commenced. When C.M. was being questioned by police officers during their investigation, she told one officer that defendant attempted to rape her with his penis in the bedroom, but did not achieve penetration. She told the officer defendant did not put fingers inside her. Defendant’s argument is that the jury could have believed this version of what happened. If so, defendant argues that the bodily harm element of aggravated kidnapping would have been absent and the juiy could have con victed of unlawful restraint. lie argues the attempted rape described in this version does not constitute bodily harm.
This argument lacks merit. C.M/s testimony at trial was that she was raped by defendant in the bedroom of the trader. Any prior inconsistent statements go to the weight, to be afforded C.M/s testimony. The jury obviously believed C.M/s testimony as to what happened in the bedroom as it convicted defendant of rape. Further, the bodily harm element of aggravated kidnapping is not wholly dependent on the rape. Defendant retained total control over C.M. until he let her out of his truck in Lawrence with the threat he would kill C.M. and her mother if C.M. told anybody what had happened. Under C.M/s undisputed testimony, between the time defendant dragged her out of the bathroom and when she was returned home, in addition to being raped, she was beaten until she passed out and was also the victim of another act of sodomy during the trip back to Lawrence.
Defendant argues that C.M/s prior inconsistent statement is particularly significant since under the information (and instruction) the State had to prove the taking or confining of C.M. was done with intent to inflict bodily harm on C.M. as opposed to other statutory kidnapping intents. To prove aggravated kidnapping the State had to prove both bodily harm and the intent to inflict bodily harm. There was no claim any bodily harm was accidental and not the result of an unintended act.
We have reviewed the record and conclude that, under the circumstances herein, defendant could not reasonably have been convicted of unlawful restraint had the jury been instructed on same as a lesser included offense. Accordingly, the refusal to give such an instruction was not error.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the Kansas Department of Revenue (KDR) from a final order of the Board of Tax Appeals (BOTA) which held that the sale of electricity consumed in grain elevator operations, such as for aeration, blending, cleaning, and drying of grain, is exempt from sales tax pursuant to K.S.A. 79-3602(m)(B) and K.S.A. 79-3606(n).
Collingwood Grain, Inc., Garvey Elevators, Inc., and Cairo Cooperative Equity Exchange (taxpayers) are grain elevators. In 1989, taxpayers each submitted claims seeking sales tax exemption on future utility bills and refunds of sales tax paid on previous billings pursuant to K.S.A. 79-3606(n). That statute provides for a sales tax exemption on:
“all sales of tangible personal property which is consumed in the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property, the providing of services or the irrigation of crops for ultimate sale at retail within or without the state of Kansas; and any purchaser of such property may obtain from the director of taxation and furnish to the supplier an exemption certificate number for tangible personal property for consumption in such production, manufacture, processing, mining, drilling, refining, compounding, irrigation and in providing such services.”
It is undisputed that electricity is “tangible personal property” subject to the sales tax exemption. K.S.A. 79-3602(m)(B).
The taxpayers’ claims were consolidated. The procedural history is of no real significance and will not be set forth in detail. The first hearing occurred in 1989, and subsequently there was a rehearing by BOTA, following remand by the Court of Appeals. BOTA issued its order on remand in February 1994. The order states in pertinent part:
“At harvest, grain is dumped into a pit and is then taken to a storage bin for holding. Following the completion of harvest, the grain elevators begin their compounding, processing, and refinement activities which include fhe process of blending/tuming, fumigation, cleaning, aeration, grain drying, feed grinding and fertilizer blending. The functions and purposes of each process are often interrelated and are often completed in conjunction with fhe other processes. The processes available and performed at each elevator vary according to fhe individual property characteristics of the elevator.
“A. Blending/Turning. The term ‘blending’ is often used interchangeably with ‘turning’; however, for purposes of taxation, such processes are separate and distinct. Blending is the process which takes the grain received in various quality levels and refines, compounds, and processes the grain through cleaning, turning, and dehydration to achieve a more uniform product in terms of moisture level, test weight and protein level. Blending improves the value or marketability of fhe grain. In contrast, tinning is fhe process by which grain is moved within the bin primarily to dissipate hot spots and prevent spoilage. Although turning will result in some dehydration, the primary purpose of turning is to preserve the grain rather than to create an improved or more marketable product.
“B. Fumigation. Typically, in September or October following harvest, grain is fumigated for the purpose of killing all bugs in the grain. Fumigation is the process whereby fumigants (either liquids or pellets) are added to the grain to kill [insects] and prevent further insect damage. One method of fumigation is to turn the grain and deposit phosphine pellets on the grain as it goes into the bin. Another method of fumigation is through the application of liquid [fumigants] through the aeration system. Aeration fans pull the fumigants through fhe grain mass. It would appear that the primary purpose of fumigation is to preserve the grain.
“C. Cleaning. Elevators remove foreign matter from the grain by several methods. Some elevators have aspirators whereby the grain passes through these machines and air suction pulls out the foreign matter. Other elevators use rotary cleaners which involve screens through which the grain will pass but the trash will not. Grain is delivered to the screens by means of a centralized elevator leg. It appears that the primary purpose of cleaning is to produce an improved or more valuable product which is more marketable to grain mills.
“D. Aeration. Aeration is used by grain elevators to lower the moisture content (drying) and to control insect infestation. Drying is essential to reduce moisture content so that the grain becomes a marketable product. Specifically, aeration is the process where cold air is pulled through the grain by large fans to lower fhe temperature of the grain below 50 degrees. Moisture is removed through evaporation. Furthermore, once fire temperature of the grain has been lowered below 50 degrees, fhe insects become dormant. During aeration, the fans typically operate continuously all winter for a period of three to six months. Aeration is commonly used in conjunction wifh other processes. Aeration is used to produce an improved and more marketable product.
“E. Grain Drying. Grain drying occurs at an elevator when wet grain is received at the receiving pit. The wet grain is elevated by the elevator leg and taken over to a dryer, a piece of equipment that uses either natural gas or propane running a series of burners. As grain passes over the burners, the heat takes the moisture out. Com and milo are typically the grains which are dried. Drying is essential for reducing moisture so that the grain becomes a marketable product.”
Using the dictionary definitions of “process,” “refining,” and “compounding,” BOTA stated:
“Grain elevators, through blending, mix and combine [(compound)] grains of various grades in order to achieve a high quality product which has a lower moisture level, a more marketable test weight, and a higher protein level and grade. Furthermore, the various cleaning processes, working singularly or in conjunction with other processes, help to reduce and eliminate foreign matter, insect infestation, and damaged grain [(refining)]. Furthermore, the various drying processes working singularly or in conjunction with other processes improve the grain quality, moisture content, test weight, and protein level.”
BOTA rejected the KDR’s argument that “production, manufacturing, processing, mining, drilling, refining, or compounding” is limited to those processes which result in the physical transformation of the product into an article or product of substantially different character. BOTA held that a transformation of tangible personal property into a product of substantially different character is not necessarily required in order to obtain the exemption; it is sufficient if the procedure transforms or converts the product into an improved marketable product. BOTA concluded:
“In this particular case, all of the processes except for turning and fumigation are used to treat, process, and improve the harvested grain into a more marketable and improved product in terms of test weight, protein level, moisture content and grade. Cleaning refines the grain by ehminating foreign matter including damaged grain. Blending, drying and aeration will process and compound the grain into a more marketable product by improving the test weight, protein level, grade and moisture content of the final product. Grain turning and fumigation, however, is performed simply to preserve the grain in its present condition. By grain turning, the grain elevator prevents hot spots and insect infestation. Fumigation merely kills insects that could spoil the grain.
“. . . The Board, therefore, concludes that the purchases of electricity used in blending, aeration, drying, and cleaning should be exempt from the retailers’ sales tax pursuant to K.S.A. 79-3606(n) and K.S.A. 79-3602(m). . . . The taxpayer’s [sic] request to exempt purchases of electricity used in grain turning and fumigation, however, should be denied.”
The KDR petitioned for reconsideration and rehearing. BOTA declined to alter its order. The KDR timely appealed, and the appeal was transferred to this court pursuant to K.S.A. 20-3017 on the KDR’s motion.
Taxpayers do not cross-appeal from BOTA’s determination that electricity used in turning and fumigating is not exempt under K.S.A. 79-3606(n).
STANDARD OF REVIEW
BOTA orders are subject to judicial review under the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. See K.S.A. 74-2426(c). The KDR properly acknowledges its burden in this appeal to prove that the action taken by BOTA was erroneous. See K.S.A. 77-621(a). The KDR suggests that BOTA “erroneously interpreted or applied the law”; that BOTA “engaged in an unlawful procedure or . . . failed to follow prescribed procedure”; that BOTA’s decision was “based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole”; and that BOTA’s decision was “otherwise unreasonable, arbitraiy or capricious.” See K.S.A. 77-621(c)(4), (5), (7), (8).
SUBSTANTIAL EVIDENCE
The KDR argues that BOTA’s findings of fact are not supported by substantial evidence in the record as a whole. The KDR points out that one ground for reversal of BOTA’s decision is if it was “based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A. 7.7-621(c)(7). “ ‘[Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ [Citations omitted.]” Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 572-73, 808 P.2d 1369 (1991).
The KDR points to numerous treatises which were admitted into evidence. The KDR asserts the treatises show that aeration is not designed to dry the grain and that the aeration fans do not produce enough air flow to dry the grain. It stresses that aeration, turning, and blending are performed in order to cure “hot spots” which develop when moisture migrates through the stored grain. The hot spots develop even though the moisture content of the grain when it is placed into storage is low enough for extended storage.
It is helpful to summarize the processes of blending, cleaning, drying, and aerating. The evidence in the record describing each of these processes is extensive, and it would be impossible to thoroughly discuss each article or treatise or each witness’ testimony concerning these processes.
Grain storage facilities receive grain from farmers after harvest. The grain is placed into storage bins layer upon layer. When initially placed into storage, the grain is not separated by grade, although low-grade grain may be placed into separate bins. A higher quality grain may be layered upon a lower quality grain, and wetter grain may be layered upon a drier layer of grain. Because grain from different sources is layered together, the grain in the bins lacks uniformity. Grain storage facilities “blend” the grain from the same or different bins to achieve a uniform quality of grain. Grain with a high moisture content may be blended with drier grain to produce grain with an acceptable moisture content, and low-grade grain may be blended with high-grade grain in amounts which do not make the high-grade grain lose its high-grade quality but does result in the low-grade grain having a higher value because, if properly mixed, it becomes part of a high-grade grain. Thus, the blending process “improves” the value of the low-grade grain while not decreasing the value of the high-grade grain. Blending, or turning, may also be done to redistribute the grain in a storage unit to break up hot spots and prevent deterioration.
Some grains are typically harvested with a high moisture content. Grain “drying” occurs when the grain passes over burners heated by propane or natural gas and the moisture in the grain evaporates. The grain is then cooled before it is stored. The drying process is necessary for wet grains because grains with a high moisture content deteriorate quickly if not dried before being stored. Ideally, grain is dried enough for safe storage but not too much, as excessively dry grain may crack and therefore be down graded. The drying process is not typically used with wheat because wheat is ordinarily sufficiently dry at harvest, though if harvest conditions are wet the wheat may be dried before storage.
“Cleaning” refers to the process by which foreign objects are removed from the grain. Grain may be cleaned in several ways. One way is to pass the grain through a screen which does not permit the foreign material to pass through. Another method is by using dust collectors to suction off the foreign material. One of the downfalls to cleaning grain is that grain may become cracked or broken, reducing the quality of the grain. Through cleaning, insect control may be improved. Storage of grain is made easier if the grain has been cleaned because air passes more easily through the grain, thus reducing the development of hot spots.
One of the problems of storing grain is moisture migration. Grain absorbs moisture from the air or releases moisture into the air. As the temperature of the grain varies, particularly during the winter months when the grain on the outer portions of the storage units cools while the temperature of the grain in the center of the units remains constant, moisture moves through the grain and the grain develops hot spots. Hot spots are areas of grain which have a high moisture content and are prone to spoilage or greater insect infestation. To counter the development of hot spots, grain storage facilities “aerate” the grain. Aeration typically involves a fan which slowly moves air throughout the grain in the storage unit. The process cools the grain mass and reduces moisture migration. When the grain is cooled, insect activity is reduced, as many of the insects supported by the grain do not survive at low temperatures. Aeration can also reduce the moisture content of the grains slightly, although this is not its primary purpose. Aeration is also one of the methods by which grain is cooled after the diying process.
The evidence in the record concerning the various processes at issue is quite extensive. The KDR’s main concern appears to be with BOTA’s finding that aeration is used to dry die grain. There is evidence in the record that the moisture content of grain may be somewhat reduced through aeration. BOTA’s findings are generally supported by the evidence. The crux of the KDR’s ar gument concerns what effect the various processes must have on the grain for the processes to be considered “production, manufacture, processing, . . . refining or compounding” of grain.
K.S.A. 79-3606(n)
K.S.A. 79-3606(n) exempts from taxation electricity used in the “production, manufacture, processing, . . . refining or compounding of tangible personal property.” The issue is what constitutes “production, manufacture, processing, . . . refining or compounding.” BOTA held that to receive the exemption, the statute does not require that the product be transformed into a substantially different product; rather, the terms include the transformation into an improved marketable product.
The KDR first argues that BOTA’s construction is incompatible with the construction of sales tax processing exemptions previously adopted by this court. The KDR points to two cases, Warren v. Fink, 146 Kan. 716, 72 P.2d 968 (1937), and R.L. Polk & Co. v. Arnold, 215 Kan. 653, 527 P.2d 973 (1974).
In Warren, this court construed a statute which provided that “[s]ales and purchases of electricity, . . . for use in . . . processing, . . . shall be exempt from taxation under this act” and that sales of electricity “made to a person engaged in the business of producing, manufacturing or compounding for sale any article, substance, service or commodity which is actually used in the production, and enters into the processing of, and becomes an ingredient or component part of the article, substance, service or commodity which he manufactures or compounds, produces or furnishes” are exempt. 146 Kan. at 718. The plaintiff, a retail grocer, purchased electricity in order to run the refrigeration system in which he stored meat, milk, vegetables, and other perishable products to preserve the products for sale. This court held that the plaintiff was not a “processor” within the meaning of the act.
“What is done is to preserve these. commodities in substantially the same condition. It is quite different from the use of refrigeration to make ice cream from milk and other ingredients, or from making a new or different article by heat. The electric energy purchased by plaintiff is not resold, but is consumed by him in die conduct of his business, just as he might consume electric energy for lights in his store.” 146 Kan. at 718.
In Warren, the court also denied exemptions to persons who used ice to cool products for sale to the public. 146 Kan. at 718.
R.L. Polk, 215 Kan. 653, considered whether film, lithoplates, developer, and other supplies used by a printing plant in printing city directories for retail sale were exempt from taxation as consumable items used in the manufacturing process. The statute at issue was the predecessor to K.S.A. 79-3606(n) and used nearly identical language. See K.S.A. 1970 Supp. 79-3606(m). This court stated:
“Our statutes do not define the term ‘manufacture’ nor has our case law done so. Webster’s Third New International Dictionary supplies this broad definition: '. . . the process or operation of making wares or other material products my hand or by machinery esp. when carried on systematically with division of labor ... a productive industry using mechanical power and machinery. . . .’
“In 68 Am. Jur. 2d, Sales and Use Taxes, §112, we find this:
‘The terms “manufacturing” and “processing” imply essentially a transformation or conversion of material or things into a different state or form from that in which they originally existed — the actual operation incident to changing them into marketable products.’ (p. 160.)”
215 Kan. at 656.
The R.L. Polk court concluded that the printer s use of the film and other supplies to photograph typed lists of the names and addresses of residents for inclusion in the finished directory was property immediately consumed in manufacturing under the exemption statute.
The KDR points to the definition of “property used in processing” set forth in the Kansas use tax statutes at K.S.A. 79-3702(f):
“ ‘Property used in processing’ within the meaning of this act shall mean and include (1) any tangible personal property which, when used in fabrication, compounding, manufacturing or germination, becomes an integral part of the new article resulting from such fabrication, compounding, manufacturing, or germination, and intended to be sold ultimately at retail; (2) fuel which is consumed in creating power, heat, or steam for processing or for generating electric current.”
Sales and use tax statutes should, the KDR reminds this court, generally be construed together. See Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 41, 334 P.2d 808 (1959); Consumers Co-operative Ass’n v. State Comm. of Rev. & Taxation, 174 Kan. 461, Syl. ¶ 1, 256 P.2d 850 (1953). The KDR also asserts that the nature of grain elevators as “public warehouses” under K.S.A. 34-223 et seq. weighs against finding an exemption here. K.S.A. 34-223 et seq. governs the activities of grain elevators in inspecting, sampling, storing, weighing, and grading grain. K.S.A. 34-224 provides that “public warehouse, as used in this act, shall be deemed to mean every elevator or other building in which grain is received for storage .or transfer for the public.” Taxpayers point out that K.S.A. 34-237 provides that a grain elevator operator may be permitted to dry, clean, or otherwise change the condition or value of grain.
Next, the KDR argues that BOTA’s construction violates the rule that tax exemptions are to be strictly construed against exemption and in favor of taxation. It is a well-established rule of construction that tax exemption statutes must be “construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify.” Board of Park Comm’rs, City of Wichita v. State, ex rel., 212 Kan. 716, 717, 512 P.2d 1040 (1973). The burden is on the person asserting exemption to bring himself or herself within the exemption statute. See Warren v. Fink, 146 Kan. 716, Syl. ¶ 1. The KDR suggests that similar rules of construction apply to tax refund statutes: The refund statute must be construed strictly in favor of imposing the tax and against allowing the refund, and the burden is on the person requesting a refund to bring himself or herself within the exemption statute. No valid reason exists to apply a different rule of construction to tax refund statutes. Both refund and exemption statutes serve the same purposes. This court will construe refund statutes strictly against the person seeking such refund. This rule is, of course, subservient to the fundamental rule of statutory construction which requires that the purpose and intent of the legislature govern.
The KDR asserts that sales tax exemptions for manufacturing and processing, such as the exemption at issue here, require the transformation of a product into a state or form that is different from the one in which it originally existed. In addition to Warren, 146 Kan. 716, and R.L. Polk, 215 Kan. 653, the KDR cites cases from other jurisdictions as well as 68 Am. Jur. 2d, Sales and Use Tax §146, which states:
“The terms ‘manufacturing’ and ‘processing’ imply essentially a transformation or conversion of material or things into a different state or form from that in which they originally existed — the actual operation incident to changing them into marketable products. The change in form, composition, or character must be a substantial change and it must result in a transformation of the property into a different product having a distinct name, nature, and use. The common thread in the definition cases is that manufacturing involves the production of an article with a new use different from its original use.”
The KDR stresses the language quoted above which indicates that there must be a “transformation of the property into different product having a distinct name, nature, and use.”
Other jurisdictions have adopted similar language. In Connecticut Water Co. v. Barboto, 206 Conn. 337, 537 A.2d 490 (1988), a regulation defined “manufacturing” as
“ ‘an integrated series of operations which places personal property in a form, composition or character different from that in which it was acquired for sale in the regular course of business by die manufacturer. The change in form, composition, or character must be a substantial change, and it must result in a transformation of property into a different product having a distinctive name, nature and use.’ ” 206 Conn. at 341.
This definition was adopted as an administrative regulation by the Connecticut state agency. The court held that materials used in constructing water treatment plants, at which water unsuitable for drinking was made suitable for consumption, were not exempt from the sales tax because the eventual product was still water and it did not have a distinctive name or nature required by the regulation. 206 Conn. at 344. The court cited American Sumatra Tobacco Corp. v. Tone, 127 Conn. 132, 15 A.2d 80 (1940), where the same court held that steps taken in preparing shade grown tobacco for market did not constitute a manufacturing operation because, even though failure to complete the process would result in an unmarketable product, the final product after the preparation was still a leaf of tobacco. 206 Conn. at 344. See also Suburban, Etc. Gas Corp. v. Tawes, 205 Md. 83, 88, 106 A.2d 119 (1954), where the Maryland court held that adding odorant, to control odor, and methanol, to prevent freezing, to gas was not “compounding” because “the gas when delivered to the consumer was substantially the same gas as delivered to the taxpayer.”
In Tube Co. v. Glander, 157 Ohio St. 407, 105 N.E.2d 648 (1952), the Ohio court held that the terms “manufacturing” and “processing” “imply essentially a transformation or conversion of material or things into a different state or form from that in which they originally existed.” 157 Ohio St. at 410. The court held that machinery used to transport ore and limestone from the ships on which it is delivered to the storage yard where the ore was blended prior to its introduction into blast furnaces for manufacture into steel pipes and tubular products was not directly used in the manufacturing process. 157 Ohio St. at 411. The court pointed out that no change in the original materials took place by use of the machinery and such operations were preliminary and preparatory to the manufacturing or processing of the materials. 157 Ohio St. at 410-11. Produce Co. v. Kosydar, 34 Ohio St. 2d 206, 297 N.E.2d 532 (1973), reached a similar result. The Produce Co. court stated, “[M]ere enhancement of value of a product, absent a change in ‘state or form’ from that in which it originally existed, does not constitute ‘processing.’ ” 34 Ohio St. 2d at 211. Produce Co. considered the activity of cleaning, candling, grading, oiling, and packaging eggs for sale to retailers. The court stated:
“The operation described herein evidences no change in the state or form of the eggs, regardless of the fact that they may have been enhanced in value. Those eggs which were unfit for consumption when received by die producer remained unfit for consumption; and those eggs which were fit for consumption when delivered to die retailer were fit for consumption at the time they were received.” 34 Ohio St. 2d at 211.
See also Linwood Stone Products Co. v. State Dept. of Revenue, 175 N.W.2d 393, 395 (Iowa 1970) (“ ‘processing’ refers to an operation whereby raw material is subjected to some special treatment by artificial or natural means which changes its form, context, or condition, and results in marketable tangible personal property").
Beare Co. v. Tennessee Dept. of Revenue, 858 S.W.2d 906 (Tenn. 1993), recognized a distinction between “processing” and material handling or storage. The court cited Produce Co., 34 Ohio St. 2d 206, as well as Warren, 146 Kan. 716. The court held that “blast freezing,” in which fresh or raw food products are quickly frozen, and other handling related to those products constitute “processing” because the condition of the food is changed, but activities related to the mere preservation of prefrozen foods did not constitute “processing.” 858 S.W.2d at 909.
Taxpayers argue that they are entitled to an exemption because the processes of blending, cleaning, diying, and aerating grain constitute “processing,” “refining,” or “compounding.” Taxpayers rely on the dictionary definitions of those terms. Taxpayers assert that “processing” refers to action which converts an agricultural commodity into marketable form by some special process, that “compounding” means mixing, combining, or blending, and that “refining” refers to the process of bringing a product to a pure state by removing impurities.
Taxpayers seek to distinguish Warren, 146 Kan. 716, and R.L. Polk, 215 Kan. 653. Taxpayers argue that in Warren, the grocer was merely holding pre-packaged products for resale in the same state in which they were received, whereas the grain elevators transform grain into a marketable product. Taxpayers assert that R.L. Polk construed only the definition of “manufacture” and did not construe “processing,” “refining,” or “compounding.” The R.L. Polk court did cite a definition of “processing” from Am. Jur. 2d.
Taxpayers cite Carroll County v. Shriver Co., 146 Md. 412, 126 A. 71 (1924), and Stokely-Van Camp v. State, 50 Wash. 2d 492, 312 P.2d 816 (1957). Carroll County considered whether activities of canning vegetables constituted “manufacturing.” The canning process, which included washing ears of com and removing damaged or immature ears, was held exempt from taxation as a manufacturing process. In Stokely-Van Camp, the preparation of fresh fruit and vegetables for packaging and freezing, a process which included cleaning the various fruits and vegetables, was held to be “manufacturing.” The court was unable to distinguish between canning vegetables and freezing vegetables, even though the vegetables were cooked as part of the canning processes but not as part of the freezing process. 50 Wash. 2d at 498.
In National Lime and Stone Co. v. Kosydar, 38 Ohio St. 2d 206, 311 N.E.2d 899 (1974), the Ohio court considered the process of producing crushed limestone and related products.
“Raw stone is subjected to several stages of crushing and screening, following which quantities of different sized stone are blended together in proportions specified by purchasers and placed in storage piles. While awaiting delivery, these blends must be periodically mixed in order to maintain an homogenous blend conforming to customer specifications.” 38 Ohio St. 2d at 207.
The court concluded that equipment and machinery used in these processes was equipment used in “processing.” The court quoted its syllabus in France Co. v. Evatt, 143 Ohio St. 455, 55 N.E.2d 652 (1944):
“ ‘Sales of tangible personal property used and consumed in operations consisting of transporting crushed-stone products from a stone crushing and screening plant to yards adjacent thereto, and of draining, cleaning, blending and reassembling such products to comply with the required specifications of the purchasing trade before they are available and ready for market and sale, are sales of personal property used and consumed direcdy in the production and processing of tangible personal property for sale.’ ” National Lime and Stone Co., 38 Ohio St. 2d at 208.
The court held that equipment used by the taxpayer was “directly involved in transforming the stone into a ‘state or form' different from that in which it originally existed” and that such use constituted “processing.” 38 Ohio St. 2d at 209.
The KDR argues that the blended, cleaned, dried, or aerated grain is not a different product from the original grain. The grain is still “raw unprocessed grain” just as it was before the processes. The cases cited by KDR appear to support its argument. If the terms “production, manufacture, processing, . . . refining or compounding of tangible personal property” require a substantial change in the condition of the product to form a new and distinct product with a different name, then that has not occurred here.
However, KDR places too much reliance on its assertion that the product following blending, cleaning, diying, and aerating was raw unprocessed grain, the same product as before the processes were performed. The finished product is still called “raw unpro cessed grain” and is used in the same way and for the same purposes as the raw unprocessed grain prior to these processes and, as such, does not satisfy the test adopted in Am. Jur. 2d and by other courts that the new product have a distinct name, nature, and use. But the new raw unprocessed grain is of a different quality than the grain before the processes are performed. The KDR's construction of the terms “production, manufacture, processing, . . . refining or compounding” is too narrow.
We adopt a broader construction of “production, manufacture, processing, . . . refining or compounding of tangible personal property.” A broader construction would not be inconsistent with Warren v. Fink, 146 Kan. 716, 72 P.2d 968 (1937). Warren did hold that electricity used for refrigeration by a retail grocer was not exempt from taxation under a statute similar to K.S.A. 79-3606(n). However, the use of the electricity in Warren was for preservation of products for retail sale. The case at bar is quite different. Taxpayers do not merely preserve the grain for retail sale. Taxpayers are grain warehouses which do more than merely warehouse grain. Taxpayers must prepare the grain for the wholesale market by performing the functions of blending, cleaning, and drying. Aeration does appear to be primarily used for a preservative function. However, unlike the retail grocer who preserves milk for retail sale by keeping it cold, grain elevators must aerate grain to maintain its marketability for wholesale use. Aeration does change the nature of the grain, though to a much lesser extent than does blending, cleaning, and drying.
By performing the processes of blending, cleaning, drying, and aerating grain, taxpayers produce a product different from that which was received by them. The product has an enhanced value. Grain which was previously low-quality grain because it was unclean, too wet, or bad quality may be turned into marketable grain by these processes. If the blending, cleaning, and drying functions are not performed, the grain may rapidly deteriorate and become unmarketable. Even when these processes are performed before the grain is stored, the grain will naturally deteriorate during extended storage unless steps are taken to prevent deterioration. Electricity used by the taxpayers in blending, cleaning, drying, and aerating again is construed to be exempt from taxation under K.S.A. 79-3606(n) as property consumed in the “production, manufacture, processing, . . . refining or compounding of tangible personal property.”
SUBPOENAS
Prior to the BOTA hearing following remand from the Court of Appeals, the KDR filed several requests for issuance of subpoenas duces tecum. The subpoenas duces tecum were directed to Tom Tunnell and the Kansas Grain and Feed Association (KGFA). Tunnell is the executive vice-president of the KGFA. Neither Tunnell nor KGFA is a party to this case, but Tunnell testified as an expert witness.
The first request was for the following documents:
“a) All books, magazines, articles, seminar material and other such printed material in their possession, custody or control that in anyway [sic] concern biological, chemical or other scientific aspects of the storage or preservation of cereal grains.
“b) All correspondence and other written communications of any nature made at any time by them or received by them that is in their possession, custody or control and that in anyway [sic] concern biological, chemical or other scientific aspects of the storage or preservation of cereal grains.
“c) All books, magazines, articles, seminar material and other such printed material in their possession, custody or control that concern the mechanical, electrical or structural engineering of grain storage elevators or the operation of such elevators.
“d) All correspondence and other written communications of any nature made at any time by them or received by them in their possession, custody or control that in anyway [sic] concern the mechanical, electrical or structural engineering of grain storage elevators or the operation of such elevators.
“e) AH written memoranda, studies, research, letters, recommendations, factual summaries, or similar writings prepared or received by them at any time that are in their possession, custody or control and concern or discuss in any manner:
i) aeration of cereal grain,
ii) storage practices of cereal grain,
iii) principles of grain preservation, or
iv) Kansas Grain storage practices.”
A second request, filed July 19, 1993, was again directed to Tunnell and the KGFA for production of the same materials.
On August 26, 1993, BOTA issued a preliminary order. It denied issuance of a subpoena duces tecum on the KGFA. BOTA stated, “On its face, the subpoena duces tecum is extremely broad and may be fairly construed to request the production of any and all written or printed documents notwithstanding the content, description or relevancy now in possession of Kansas Grain and Feed Association.” BOTA indicated that the request was “so indefinite and broad, it appears to be unduly burdensome.” BOTA declined to issue the subpoena duces tecum until the KDR made the request more definite and less burdensome.
The KDR filed a new request for issuance of a subpoena duces tecum directed to the KGFA on August 30, 1993, narrowing the scope of the request slightly:
“a) All newsletters, bulletins and other material printed by or published by the association and supplied to its members for the years 1985 to the present.
“b) All seminar material from whatever source, handbooks from whatever source, and published material from agricultural colleges and their extension services in your possession, custody or control that concern the mechanical, electrical or structural engineering of grain storage elevators or the operation of such elevators.
“c) All written memoranda, studies, research, letters, recommendations, factual summaries or similar writings prepared or received by you at any time that are in your possession, custody, or control and concern or discuss in any manner:
i) aeration of cereal grain,
ii) storage practices of cereal grain,
iii) principles of grain preservation, or
iv) Kansas grain storage practices.”
Tunnell, the KGFA, and taxpayers objected to the subpoena duces tecum, and following a hearing on September 28, 1993, BOTA, concerned with the indefinite and burdensome nature of the modified request, issued an order on October 6, 1993, quashing the subpoena duces tecum with respect to all material except a grain elevator workbook published by the KGFA.
The KDR then made another request on October 7, 1993, for issuance of a subpoena duces tecum directed at Tunnell and the KGFA seeking the following:
“a) All newsletters that were provided by the Kansas Grain and Feed Association or its predecessor organization, the Kansas Grain and Feed Dealers Association, to their members for the years 1970 to the present, said newsletters having been previously described as being bound annually.
“b) All seminar materials, workshop materials, and other such materials provided by the Kansas Grain and Feed Association or its predecessor organization, die Kansas Grain and Feed Dealers Association, to persons attending seminars and other educational events that were sponsored in whole or in part by the Kansas Grain and Feed Association or by its predecessor organization.”
By order on October 8, 1993, BOTA refused to issue the subpoena duces tecum, finding no reason to reverse its October 6, 1993, order. Another request, identical in scope to the last-mentioned request, was filed on November 15, 1993. On November 18, 1993, BOTA issued its order denying the request, finding no reason to reverse its orders of October 6 and 8, 1993.
K.S.A. 74-2437a gives BOTA the authority to issue a subpoena duces tecum. The Kansas Administrative Procedure Act, K.S.A. 77-501 et seq., also sets forth the scope of discoveiy: “Discovery shall be permitted to the extent allowed by the presiding officer or as agreed to by the parties. . . . The presiding officer may issue subpoenas, discovery orders and protective orders in accordance with the rules of civil procedure.” K.S.A. 77-522(a).
Both parties cite Yellow Freight System, Inc. v. Kansas Commission on Civil Rights, 214 Kan. 120, 519 P.2d 1092 (1974). There, this court considered the subpoena power of the Kansas Commission on Civil Rights (Commission) in the context of investigating a complaint of employment discrimination. The Commission sought production of documents relating to the employment histories of Yellow Freight employees hired during the 10 years preceding the complaint. Both the KDR and taxpayers also cite Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 531 P.2d 455 (1975), where this court again considered the Commission’s request for a subpoena duces tecum in its investigation of an employment discrimination complaint, and the KDR further cites Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P.2d 1335 (1975). The rules of law these cases set forth are summarized as follows:
“The law refuses to apply the stringent relevancy requirements of subpoenas in aid of civil or criminal litigation to administrative agency subpoenas. To uphold a subpoena on the ground of relevancy the law requires only that the inquiry be one which the administrative agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant.” Atchison, T. & S. F. Rly., 216 Kan. 108, Syl. ¶ 6.
“Where there is a possibility of relevancy in documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive the statutes granting the power to subpoena should be liberally construed to permit inquiry.” Yellow Freight, 214 Kan. 120, Syl. ¶ 4.
“Administrative subpoenas which have previously been condemned as ‘fishing expeditions’ are now permitted, and administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose.” Atchison, T. & S. F. Rly., 216 Kan. 108, Syl. ¶ 7.
“A district court has power to modify a subpoena duces tecum issued by the Kansas commission on civil rights and thus remove any objectionable features from it while preserving the remainder.” Kansas Commission on Civil Rights, 216 Kan. 735, Syl. ¶ 7.
In Yellow Freight, 214 Kan. at 125, it is also noted by the court that under K.S.A. 60-245(b), the court may quash a subpoena if it is unreasonable and oppressive.
Similar rules have been stated concerning subpoenas issued by the Secretary of Human Resources during an investigation concerning the failure to pay unemployment taxes. See State ex rel. Wolgast v. Schurle, 11 Kan. App. 2d 390, 722 P.2d 585 (1986).
These cases indicate more “relaxed” standards, of relevancy in the context of administrative investigations as compared to the “stringent” relevancy requirement of K.S.A. 60-245(b) for purposes of litigation. Here, however, BOTA is acting in an adjudicatory rather than investigatory manner. See Atchison, T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 529 P.2d 666 (1974) (distinguishing between the investigatoiy and adjudicatory functions of administrative agencies).
In any event, the enforcement of a subpoena duces tecum is left to the discretion of the enforcing tribunal. In Cessna Aircraft Co. v. Kansas Comm’n on Civil Rights, 229 Kan. 15, 622 P.2d 124 (1981), this court discussed enforcement of a subpoena duces tecum by a district court, again where the subpoena was sought by the Commission as part of an employment discrimination investigation. The Commission sought records from Cessna concerning some 5,399 employees. Restating the Yellow Freight test for subpoenas duces tecum issued by agencies, this court also reiterated that “the subpoena power of the KCCR is subject to K.S.A. 60-245(h) and cannot be unreasonable or oppressive.” 229 Kan. at 27. The court acknowledged the district court’s power to quash or modify a subpoena if the court finds it is unreasonable or oppressive. Although the statute granting the subpoena power to the Commission must be construed liberally, the court warned that the rule of liberal construction “is not to say that the KCCR has unlimited subpoena powérs and can subject an entire facility to demands or whims without some showing of relevancy to the investigation.” 229 Kan. at 28.
Concerning the rule stated in Atchison, T. & S. F. Rly., 216 Kan. 108, Syl. ¶ 7, that “[administrative subpoenas which have previously been condemned as ‘fishing expeditions’ are now permitted, and administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose,” the Cessna court stated:
“While that is the rule, it does not mean the KCCR may throw its line in just anybody’s pond without some minimal justification or expectation that there may be some fish in tire pond. The limits of die subpoena power of die KCCR are, by statute, subject to the sound discretion of the trial court. [Citation omitted.]” 229 Kan. at 28.
Finally, in discussing the determination of the relevancy of the material sought by a subpoena duces tecum, we said this:
“While we are not saying that die burden is upon the KCCR in the first instance to justify its subpoena requests, when the same do become an issue before the trial court, some showing of relevancy should be made if a trial court is to have a basis to determine whether the subpoena is unreasonable or oppressive.” 229 Kan. at 29-30.
We found that the trial court did not abuse its discretion in modifying the subpoena duces tecum issued by the Commission.
Cessna Aircraft makes it clear that the enforcement of a subpoena duces tecum is discretionary, even under the relaxed relevancy standards established for administrative subpoenas for investigatory purposes. Likewise, BOTA must have discretion in enforcing subpoenas duces tecum filed by the KDR in an action under the KJRA for review of a tax assessment. A subpoena duces tecum is subject to K.S.A. 60-245(b), and it must be relevant and not unreasonable or oppressive. The KDR does not have unlimited subpoena powers without some showing of relevancy. See Cessna Aircraft, 229 Kan. at 28.
We cannot say BOTA was in error in holding the subpoenas duces tecum were overbroad, indefinite, and oppressive and were not designed to obtain relevant material.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
After execution of a search warrant, the defendant was charged with one count of possession of marijuana, K.S.A. 1993 Supp. 65-4127b(a)(3), and one count of possession of drug para phemalia, K.S.A. 65-4152. The district court suppressed the evidence seized because the affidavit for the search warrant failed to state probable cause that the contraband from illegal drug transactions would be found in the place searched. The State filed an interlocutory appeal. The Court of Appeals reversed the district court in an unpublished decision filed November 4, 1994. Defendant’s petition for review of the Court of Appeals’ reversal of the district court’s order suppressing evidence seized from his residence was granted by this court. This court has jurisdiction pursuant to K.S.A. 60-2101(b) and K.S.A. 20-3018(b).
In September 1993, a Dickinson County sheriff’s officer submitted a seven-page affidavit to the magistrate, requesting search warrants for 13 separate residences in Saline County for marijuana and drugs. One of the residences requested to be searched was that of the defendant, Douglas Longbine. The affidavit stated that the officer requesting the search warrant was assigned to a special drug task force, set out the officer’s extensive training and experience in obtaining search warrants, and referred to prior narcotics investigations the officer had conducted. The affidavit set forth the officer’s account of the investigation of Phillip Shafer, a person believed to be involved in the distribution of marijuana in the Salina area. The affiant stated that he had received information from various sources that Shafer obtained the marijuana outside the state of Kansas, stored the bulk of the marijuana at the houses of his associates, and had numerous persons in the Salina area sell the marijuana for him. The affidavit named associates who stored marijuana at their residence for Shafer and those who sold drugs for Shafer. The affidavit did not name Longbine as an associate who stored marijuana at his house or as one of the individuals who sold drugs for Shafer.
The affidavit stated that, pursuant to court order, a pen register device had been installed on Shafer’s phone line. The affiant stated that by use of the pen register, he had determined that Shafer had made numerous calls to the residences of nine individuals, including Longbine’s. Over a 12-day period, officers intercepted and recorded hundreds of Shafer’s calls discussing the amount of drugs available for purchase, prices, meeting places, and times. The af fiant further stated the officer was able to discover the identities of the nine individuals having the conversations, and that one of the persons calling was Douglas Longbine.
The affidavit also stated that the officer had used radio equipment to monitor Shafer s cordless telephone. On one occasion, the officer overheard a conversation between Shafer and Longbine. During the conversation Shafer and Longbine used language and terminology for a drug transaction. The affidavit did not set out the language or terminology which caused the officer to conclude that Shafer and Longbine were discussing a drug transaction or if Shafer or Longbine were involved in that transaction. The intercepted conversation occurred 15 days prior to the application for the search warrant. The remainder of the affidavit gave further details of Shafer s drug activities, none of which involved Longbine.
Based on the affidavit, the magistrate issued a search warrant for the 13 residences. In executing the warrant for Longbine’s residence, officers seized drug paraphernalia and marijuana. Longbine was arrested and charged. Longbine filed a motion to suppress the evidence seized from his residence, claiming that the affidavit for the search warrant failed to establish probable cause that contraband would be found in his residence.
In reviewing the affidavit, the district judge noted that it failed to set forth the terminology used or the conversation between Shafer and defendant which caused the affiant to conclude Shafer and Longbine were discussing a drug transaction. The judge observed that the affiant had “lumped together” defendant with numerous other individuals who were calling or being called by Shafer. The judge noted that Longbine was not named in the affidavit as an associate who stored marijuana at his house or one who sold drugs for Shafer.
After analyzing the facts stated in the application and affidavit for the search warrant, the district judge concluded that a reasonable police officer would not have believed that the affidavit stated sufficient information to support probable cause for the issuance of the warrant to search defendant’s residence. The judge granted defendant’s motion to suppress the evidence seized during the execution of the warrant.
The State filed an interlocutory appeal. The Court of Appeals reversed the order of the district judge suppressing the evidence, finding (1) there was a substantial basis stated in the affidavit to conclude that probable cause existed and (2) the good faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984), applied, and upheld the validity of the search.
Standard of Review
Longbine argues that the Court of Appeals used an improper standard of review in determining that probable cause existed to support issuance of a search warrant. In its unpublished opinion, the Court of Appeals noted that in Illinois v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), the United States Supreme Court stated that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts. The Court of Appeals then observed that when called upon to review the magistrate’s issuance of a search warrant, “the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” State v. Abu-Isba, 235 Kan. 851, Syl. ¶ 3, 685 P.2d 856 (1984).
Defendant contends that after stating its standard of review, the Court of Appeals ignored the district court’s findings of fact and conclusions of law. The defendant asserts there is substantial evidence to support the district court’s suppression of the evidence. The question to be determined is whether the information in the affidavit supporting the application for a search warrant would lead a reasonably prudent person to believe that contraband would be found in the defendant’s residence. See State v. Ratzlaff, 255 Kan. 738, 744, 877 P.2d 397 (1994).
In State v. Ratzlaff, 255 Kan. at 742, this court observed that the findings of fact of the district court control and should be accepted as the basis upon which the trial court’s suppression of the evidence is reviewed. It noted that the trial court determinations of fact, unappealed from, are final and conclusive. Palmer v. State, 10 Kan. App. 2d 656, 657, 707 P.2d 1091, rev. denied 238 Kan. 878 (1985). We have stated that when reviewing a trial court’s suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. Even though great deference is given to the factual findings of the trial court, the ultimate determination of the trial court’s suppression of evidence is a legal question requiring independent appellate determination. State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995). The Court of Appeals was aware of its standard of review. The question is whether the Court of Appeals properly applied the standard of review.
Sufficiency of Probable Cause Evidence
This case is procedurally and factually similar to Ratzlaff, 255 Kan. 738, in that the two courts reviewed the facts stated in the affidavit and reached opposite legal conclusions. In both cases, after a motion to suppress the evidence seized had been filed, the district judge in the judicial district which issued the search warrant reviewed the affidavit and decided that the information provided in the affidavit did not constitute a substantial basis for the issuing judge to conclude that probable cause existed for issuance of the search warrant of defendant’s residence. The Court of Appeals read the same affidavits and found that each of the affidavits contained sufficient information to issue a search warrant. In Ratzlaff, 255 Kan. at 751-55, after reviewing several recent decisions examining whether affidavits for search warrants established sufficient information to conclude probable cause existed, the court determined the district judge did not err in (1) finding no probable cause to issue the search warrant and (2) suppressing the evidence seized.
K.S.A. 1994 Supp. 22-2502, in pertinent part, provides that a search warrant shall be issued upon oral or written application which states facts sufficient to show probable cause that a crime has been or is being committed and which particularly describes the person, place, or means of conveyance to be searched. Before a search warrant may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The supporting affi davit for the search warrant must set out sufficient factual information to support an independent judgment by the magistrate that probable cause to search exists. “Bald conclusions, mere affirmations of belief, or suspicions are not enough, and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to an affiant’s personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause.” State v. Probst, 247 Kan. 196, Syl. ¶ 3, 795 P.2d 393 (1990).
In determining whether to issue a search warrant, a magistrate considers the “totality of the circumstances” presented and makes a practical, common-sense decision whether a crime has been or is being committed and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Abu-Isba, 235 Kan. 851, Syl. ¶¶ 1, 2. In determining whether there is a fair probability that contraband or evidence of the crime will be found at the place to be searched, the issuing magistrate considers the lapse of time stated in the affidavit. Whether the lapse of time tends to remove all probable cause for issuance of a search warrant by destroying any reasonable belief that drugs remain on the premises depends on the facts and circumstances of each particular case. State v. Jacques, 225 Kan. 38, Syl. ¶ 2, 587 P.2d 861 (1978).
The Court of Appeals was aware that the affidavit did not specifically state that drugs were stored at the defendant’s residence. Aware of the deficiency, the Court of Appeals analyzed the affidavit and found that the examining magistrate had a “substantial basis” to conclude that probable cause existed. It reached this conclusion by observing that the affidavit clearly showed that Shafer was a drug dealer with an established network. It determined that the multiple calls to known members of the drug network and to Longbine created the “impression that Longbine was an integral part of Shafer’s network.” It concluded that the “impression” that Longbine was an integral part of Shafer’s network was specifically substantiated and validated by the fact that Shafer and Longbine were overheard discussing the details of a drug transaction.
The Court of Appeals, after concluding there was an impression that Longbine was a member of Shafer s organization, observed that Shafers practice of storing drugs with the members.of his network was firmly established by the affidavit. Therefore, the court concluded, “because Longbine appeared to be a part of Shafer’s network that drugs would be stored at his residence or that drugs were in Longbine’s possession.” The Court of Appeals determined under its standard of review that “it is clear that the judge issuing the search warrant had a substantial basis from the affidavit to conclude that probable cause existed, and the ruling of the trial court suppressing the evidence must be reversed.”
We agree with the Court of Appeals’ conclusion that the affidavit sets forth extensive information indicating Shafer was a drug dealer with an established network, that he stored marijuana at his associates’ houses, and that numerous persons in the Salina area sold the marijuana for him. We note as to Longbine, examination of the affidavit reveals that: (1) numerous calls were made from Shafer’s residence to the residence of defendant; (2) over a 12-day period, officers intercepted and recorded hundreds of Shafer’s incoming and outgoing calls, some of which (no number was stated) were to and from Longbine, discussing the amount of drugs available for purchase, prices, meeting places, and times; and (3) 15 days prior to obtaining the search warrant, officers overheard a conversation between Shafer and defendant. During that conversation the language and terminology used made it apparent to the officers that Shafer and defendant were discussing a drug transaction. Whether the transaction was a past or future transaction or involved Longbine or Shafer was not stated in the affidavit.
After reviewing the evidence stated in the affidavit, we agree the issuing magistrate could find the affidavit created an “impression” that the defendant was part of Shafer’s network. The question is, based on this impression, can the reviewing authority conclude that it follows that Longbine, if a member of Shafer’s organization, has contraband stored in his residence. In State v. Mitchell, 8 Kan. App. 2d 416, Syl., 658 P.2d 1063 (1983), the Court of Appeals determined that an affidavit for a search warrant which states only that a “controlled purchase” of narcotic “was made from the oc cupant” of suspected premises is insufficient to support a finding of probable cause to believe there were narcotics on the premises. If the Mitchell court is correct, it follows that an affidavit for a search warrant that gives an impression but fails to state facts that support probable cause to believe that contraband will be found at the place to be searched is insufficient to buttress a finding of probable cause by the issuing magistrate.
The supporting affidavit for the search warrant must set out sufficient factual information to support an independent judgment by the magistrate that probable cause exists that a crime has been or is being committed and there is a fair probability that contraband or evidence of a crime will be found in a particular place described in the application and affidavit for the search warrant. The district judge correctly determined that the affidavit failed to state a fair probability that the contraband would be found at Longbine’s residence.
Good Faith Exception
In Leon, the United States Supreme Court held that the Fourth Amendment exclusionary rule should not be applied to bar evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant is ultimately found to be invalid. 468 U.S. at 918-922. See State v. Ratzlaff, 255 Kan. at 751-55; State v. Probst, 247 Kan. at 203-07; State v. Doile, 244 Kan. 493, 501-03, 769 P.2d 666 (1989). The Leon court, however, determined that the exclusionary rule still applies in cases where (1) the judge or magistrate issuing the warrant was deliberately misled by false information; (2) the judge or magistrate wholly abandoned his or her detached and neutral role; (3) the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; or (4) that there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for the officer to believe the warrant valid. 468 U.S. at 923; State v. Probst, 247 Kan. 196, Syl. ¶ 4.
Defendant argues that the affidavit fails to establish sufficient probable cause to support the issuance of the warrant for defen dant’s residence; therefore, the good faith exception to the exclusionary rule of Leon does not apply and the evidence should be suppressed. The district court held that the fourth exception to Leon was applicable in this case because no reasonable police officer could believe that the affidavit stated probable cause to search defendant Longbine’s residence. The Court of Appeals reversed the district judge, holding that the good faith exception to the exclusionary rule applied, and upheld the validity of the search.
The United States Supreme Court, when adopting the “good faith exception” in Leon, stated that because a search warrant provides the detached scrutiny of a neutral magistrate, which is a more rehable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime, it had expressed a strong preference for warrants in the past and declared that “ ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’” 468 U.S. at 914 (quoting United States v. Ventresca, 380 U.S. 102, 106, 13 L. Ed. 2d 684, 85 S. Ct. 741 [1965]). The Leon Court noted that reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause and concluded that the preference for warrants is most appropriately effectuated by according “great deference” to a magistrate’s determination. 468 U.S. at 914.
The Leon Court then stated that reviewing courts will not apply the “good faith exception” to a warrant based on an affidavit that does not “provide the magistrate with a substantial basis for determining the existence of probable cause.” 468 U.S. at 915 (quoting Illinois v. Gates, 462 U.S. at 239). It concluded that “ ‘sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.’ ” 468 U.S. at 915.
If the affidavit supporting the search warrant does not provide an indicia of probable cause to conclude that contraband would be found at defendant’s residence, it is constitutionally and statutorily defective, and the good faith doctrine does not apply. Leon’s good faith exception does not apply to a warrant, such as the one here, that does not provide the magistrate with a substantial basis for determining that probable cause existed that drugs would be found in defendant’s residence.
The judgment of the Court of Appeals is reversed, and tihe judgment of the district court is affirmed.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Wendell Betts, of Topeka, an attorney admitted to the practice of law in Kansas. Two complaints were heard, cases Nos. B5740 and B6067.
The respondent stipulated to the facts and stipulated that he had violated MRPC 1.1 (1994 Kan. Ct. R. Annot. 292) (competency), MRPC 1.3 (1994 Kan. Ct. R. Annot. 297) (diligence), and MRPC 8.4(d) (1994 Kan. Ct. R. Annot. 379) (engaging in conduct that is prejudicial to the administration of justice). The facts and violations as stipulated by the parties were accepted by the panel and set out in tire panel’s report.
In case No. B5740, the respondent represented a client in a civil matter filed in Sedgwick County District Court. A discovery conference was held, and at that time a pretrial conference was scheduled for January 15, 1991. The respondent, on behalf of the plaintiffs, was ordered to provide a statement of damages by November 14, 1990. The statement of damages was not provided by the respondent.
The respondent then was served with 14 interrogatories and other discovery requests. There was no response to those discovery requests. The court then entered a motion to compel discovery and set a hearing on that motion for January 7, 1991. The respondent did not appear at the hearing on the motion. The respondent denies receiving a copy of the motion to compel discovery and a notice of hearing on that motion.
The opposing party’s - motion to compel was granted, and the respondent was given three days to reply to the discovery request. That order was faxed to the respondent’s office. The respondent acknowledged receiving that order.
One day after the response was due, the respondent prepared interrogatory responses and sent them by Federal Express to the complainant. The interrogatory responses were signed and delivered to the opposing party’s counsel the morning of January 14. The respondent did not appear at a motion to dismiss hearing on January 15, 1991. He denies receiving notice of the motion to dismiss that was set on January 15, 1991. However, the respondent knew that the pretrial conference was being held on January 15, 1991.
The trial court granted the motion to dismiss. The case was dismissed on January 15, 1991. A letter was sent to the respondent notifying him the case had been dismissed. The respondent denies receiving this letter and was unaware of the dismissal of the conir plainant’s case until the spring of 1993. None of the paperwork mailed to the respondent was returned to the sender.
The respondent stipulated that he failed to provide competent representation to a client in violation of MRPC 1.1 and that he failed to act with reasonable diligence and promptness in representing a client in violation of MRPC 1.3.
In case No. B6067, the respondent stipulated that he was responsible for representing an individual in an appeal before the United States Court of Appeals for the Tenth Circuit. The client was a defendant in a criminal case. The respondent was ordered to show cause why he should not be disciplined for failure to file the opening brief of the defendant. The respondent failed to respond to the order to show cause.
The respondent was then given 20 days to show cause in writing why he should not be barred from practice before the Tenth Circuit for failing to prosecute the appeal and for his failure to respond to notices and orders of the court. The respondent failed to respond to this order to show cause.
On April 23, 1993, the respondent was barred from practice before the Tenth Circuit Court of Appeals. The respondent stipulated that he violated MRPC 1.1 by failing to provide competent representation to a client; MRPC 1.3 by failing to act with reasonable diligence and promptness in representing a client; and MRPC 8.4(d) by engaging in conduct that is prejudicial to the administration of justice by failing to abide by the rules of the Tenth Circuit Court of Appeals.
The respondent offered evidence in mitigation. The hearing panel was aware that the civil case that had been dismissed was reinstated by the Court of Appeals. Another attorney was appointed to represent the defendant in the criminal case and has filed an appeal which is progressing through the federal court system. The panel also received letters of support and recommendation from highly respected members of the bar, some of whom offered their support to the respondent. The respondent also submitted a report and recommendation of treatment from a reputable mental health specialist and submitted a plan of probation.
We adopt the panel’s findings. The panel recommended two years’ probation, subject to certain terms and conditions of probation. We agree with the panel that suspension at this time would be unwarranted.
It is the order of the court that imposition of discipline against respondent Wendell Betts be and is hereby suspended, and he is placed on probation for the period of two years on the terms and conditions hereinafter set out:
1. Attorney Gerald L. Goodell will supervise the respondent’s probation and supervise his practice for a period of two years from the date of this order.
2. Mr. Goodell shall be acting as an officer of the court and as an agent of the court as supervisor of probation in monitoring the legal practice of the respondent.
3. Mr. Goodell shall be afforded all immunities granted by Supreme Court Rule 223 (1994 Kan. Ct. R. Annot. 229) during the course of his activities as directed by this order. The respondent will allow Mr. Goodell access to his files, his employees, his trust account, and his doctors. Mr. Goodell shall act periodically at such intervals as he deems appropriate, or as directed by the Disciplinary Administrator, and monitor the following: (a) the status of each case on the respondent’s case list; (b) the respondent’s docketing system; (c) the respondent’s management of discovery; (d) the respondent’s responses to clients’ requests for information; (e) the respondent’s trust account; and (f) the views of the local judges as to their evaluation of the respondent’s performance. On a quarterly basis, Mr. Goodell shall report to the Disciplinary Administrator as to the respondent’s progress or any problems he observes. Any material deviation from proper practice shall be immediately reported to the Disciplinary Administrator.
4. At the end of two years, the Disciplinary Administrator shall certify to the Supreme Court the respondent’s satisfactory completion of probation.
5. The respondent shall continue counseling as recommended by Dr. Richard B. Maxfield and shall furnish reports of that treatment to the Disciplinary Administrator’s office at such times and intervals as established by the Disciplinary Administrator.
It Is Further Ordered that, in the event the respondent fails to abide by the conditions set forth herein, a show cause order will issue to the respondent, and this court shall take whatever disciplinary action it deems just and proper without further proceedings.
It Is Further Ordered that this order be published in the Kansas Reports and that the respondent pay the costs of these proceedings.
Holmes, C.J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
We granted the State’s petition for review of the Court of Appeals’ reversal of the defendant’s conviction for possession of marijuana, a class A misdemeanor contrary to K.S.A. 65-4127b(a)(3) and K.S.A. 65-4105(d)(16). See State v. Vandiver, 19 Kan. App. 2d 786, 876 P.2d 205 (1994). The State asserts that the Court of Appeals erred in (1) employing a de novo review of the evidence in determining whether the search was constitutionally permissible and (2) its determination that K.S.A. 22-2509 did not justify the warrantless search of the defendant. This court has jurisdiction pursuant to K.S.A. 20-3018(b) and K.S.A. 60-2101(b).
On May 3, 1993, Mike Wilson, a police detective, obtained a search warrant for David Moneymaker’s residence in Atchison, Kansas. The affidavit for the search warrant stated: (1) that Moneymaker lived at the residence; (2) that Moneymaker was a convicted drug offender; (3) that Moneymaker had been alleged to be a source for marijuana; (4) that Moneymaker previously had been seen weighing marijuana at the residence; and (5) that two marijuana purchases had occurred at the residence within the pre vious four days. The search warrant authorized the police to search Moneymaker’s apartment for marijuana and other controlled substances; drug paraphernalia; firearms, money, and documentary evidence associated with drug trafficking; and electronic equipment commonly traded for controlled substances.
Within an hour after obtaining the search warrant and without requesting other officers to assist him, Wilson knocked on Moneymaker’s apartment door. When Moneymaker opened the door, Wilson entered the kitchen of the apartment and arrested Moneymaker. Wilson then scanned the living room of the apartment and observed six persons in the living room playing a Nintendo-type game. The apartment reeked of burnt marijuana, and a baggy containing green vegetation was on the living room floor in the midst of the individuals gathered around the game. Wilson believed the baggy contained marijuana.
Wilson announced to the individuals that he had a search warrant for the apartment. Wilson immediately arrested an individual he recognized as being involved in a drug buy several days earlier. Wilson then conducted a pat-down search of Vandiver. Wilson removed a 35-millimeter film canister from Vandiver’s front pants pocket. At trial, Wilson stated that he removed the canister from Vandiver’s pocket “to inspect it, not knowing what it was,” and because he was suspicious it was either a weapon or contraband. Vandiver was arrested for possession of marijuana. Wilson then conducted a pat-down search of Orrel Berry. Wilson found Berry had drug paraphernalia on his person. Berry was arrested. Wilson then searched and released each of the remaining individuals after determining they did not possess any contraband.
Prior to trial, Vandiver moved to suppress the film canister containing marijuana as the product of an unlawful search. After hearing the evidence, the district judge found that Wilson did not believe he was in immediate danger or about to be attacked. The judge found that the persons in the apartment had offered no resistance and rejected the State’s argument that the warrantless search was justified under K.S.A. 22-2509(a) to protect the officer from attack. The judge found that exigent circumstances to prevent the disposal or concealment of an item described in the war rant existed, upheld the search under K.S.A. 22-2509(b), and denied Vandiver s motion to suppress.
At trial, the film canister containing marijuana was introduced into evidence over defendant’s objections. Vandiver was convicted of possession of marijuana. Vandiver appealed. The Court of Appeals held that Wilson had neither probable cause nor exigent circumstances to justify the search of Vandiver under K.S.A. 22-2509(b), reversed Vandiver’s conviction, and remanded the case for a new trial. This court granted the State’s petition for review.
Standard of Review
The Court of Appeals acknowledged that the State and Van-diver agreed on the facts. Citing State v. Young, 228 Kan. 355, 356, 614 P.2d 441 (1980), the Court of Appeals stated that when the facts material to a motion to suppress evidence are not in dispute, an appellate court’s standard of review is unlimited and the question of whether to suppress evidence becomes a question of law. It concluded that when determining questions of law, an appellate court’s review is de novo. 19 Kan. App. 2d at 788. Citing State v. McKeown, 249 Kan. 506, 514, 819 P.2d 644 (1991), the State argues that it is the trial court that determinés the propriety of the search based upon the facts unique to the case. It asserts that the Court of Appeals’ review of the trial court’s admission of the evidence seized was limited to determining whether the findings of the trial court were based upon substantial evidence. The State asserts that the Court of Appeals misread Young, erroneously applied a de novo standard of review, and improperly reweighed the evidence in finding that exigent circumstances did not exist to justify the warrantless search of Vandiver.
Young was an interlocutory appeal by the State from an order suppressing the result of a breath alcohol test. Prior to discussing the primary issue, the Young court noted that the parties had stipulated that the test result should be suppressed if no substantial expenditure of time or money would be required of the State in furnishing extra breath samples to the defendant. The Young court rejected the notion that the parties could enter into a stipulation that would bind the court. 228 Kan. at 356-57. The Young court then noted that because the facts material to the motion to suppress were not in dispute, the question of whether to suppress was a question of law. 228 Kan. at 356.
In State v. McKeown, 249 Kan. 506, the State appealed from the district court’s finding that the officer did not have reasonable and articulable suspicion to justify the stopping of defendant’s vehicle and its order suppressing evidence seized after the stop. The McKeown court, quoting Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 572-73, 808 P.2d 1369 (1991), noted that an appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court and must disregard any conflicting evidence or other inferences that might be drawn therefrom. It concluded that there was substantial evidence to support the district court’s suppression of the evidence seized as a result of the stop and affirmed the judgment of the district court. 249 Kan. at 514-15.
In determining the proper standard for appellate review, we find the case of Arizona v. Fulminante, 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991), to be instructive. In that case, the United States Supreme Court discussed the totality of the circumstances standard of review applicable to a state court’s determination of whether an accused’s confession was voluntary. It noted that when reviewing a state court’s decision as to the voluntariness of a criminal defendant’s confession, it normally gives great deference to the factual findings of the state court. It stated that the ultimate issue of voluntariness, however, is a legal question requiring independent federal appellate determination. 499 U.S. at 285-87. Fulminante states our standard of appellate review when reviewing a judge’s determination of whether a criminal defendant’s confession was voluntary of whether evidence seized in a search should be suppressed.
Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978); State v. Schur, 217 Kan. 741, 743, 538 P.2d 689 (1975). An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.
Because the facts were not in dispute, the Court of Appeals correctly concluded that all that remained was a question of law and therefore its review was de novo.
Search of Persons
K.S.A. 22-2509 provides:
“In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any tilings particularly described in the warrant.”
The district court found that the pat-down search of Vandiver during the execution of a search of the premises was authorized pursuant to K.S.A. 22-2509(b). In the Court of Appeals, Vandiver argued that the trial court erred in finding that exigent circumstances justified the warrantless search. 19 Kan. App. 2d at 788. In its brief the State asserted that the warrantless search of Van-diver could be validated under K.S.A. 22-2509(a) or (b); therefore, the judgment of the trial court should be upheld if correct for either reason.
The Court of Appeals declined to address whether the search was justified under K.S.A. 22-2509(a) because the State had not appealed the district judge’s finding that there was no evidence that Wilson believed he was in immediate danger of attack or that the persons in the residence would resist an arrest. 19 Kan. App. 2d at 789.
The Court of Appeals noted that the trial court had upheld the warrantless search of Vandiver, pursuant to K.S.A. 22-2509(b), to prevent disposal or concealment of things described in the search warrant based on: (1) the number of individuals in the residence; (2) the smell of burnt marijuana; (3) the previous police surveillance of the apartment; and (4) the speed and ease in which drugs could be concealed or destroyed. 19 Kan. App. 2d at 789. It observed that, in reaching his decision, the district judge erroneously applied State v. Horn, 15 Kan. App. 2d 365, 808 P.2d 438, rev. denied 248 Kan. 998 (1991).
In Horn, the police, in executing a search warrant authorizing the search of a specific residence and “the person of all persons on said premises,” searched the defendant and found cocaine and a large amount of cash in his jacket pocket. 15 Kan. App. 2d at 365, 366. The Horn court noted that general search warrants are constitutionally prohibited. In rejecting the State’s argument that the search warrant authorized a search of all persons present in the house, the Horn court found the facts in the affidavit insufficient to infer that the sole or primary activity at the residence was the sale of drugs and that everyone present would be involved in that illegal activity. It concluded that the search warrant was invalid as to its authorization to search all persons on the premises. 15 Kan. App. 2d at 366-67. It then noted that the police had a valid warrant to search the premises for drugs and drug paraphernalia. When the officers entered the residence, the occupants, which included Horn, fled toward the back of the house. Money and drug paraphernalia were in plain view, indicating to the officers executing the warrant that drugs were being sold. Given that drugs are easily concealed and easily disposed of, the police had probable cause after entering the residence to search everyone running toward the back of the house. The Horn court concluded that exigent circumstances existed to justify the search under K.S.A. 22-2509 and upheld the search of the individuals on the premises. 15 Kan. App. 2d at 367-68.
In deciding this case, the Court of Appeals found that the facts in Horn were distinguishable. The Court of Appeals concluded Wilson lacked probable cause to search Vandiver because there was no evidence that Wilson believed Vandiver and the four other individuals, excluding the one individual he arrested immediately upon entering the living room, were more than social guests of Moneymaker. It noted there was no evidence to link Vandiver to the odor of burnt marijuana or to the marijuana on the living room floor. The Court of Appeals pointed out that the officer failed to state in the affidavit for the search warrant that the apartment was used exclusively for the purchase or sale of marijuana. It concluded that aside from Vandiver’s presence in the house, Wilson had no reason to believe Vandiver possessed drugs. 19 Kan. App. 2d at 793.
After determining there was not probable cause, the Court of Appeals reviewed the evidence to determine if exigent circumstances existed to justify the search of Vandiver. It acknowledged the State’s argument that the number of individuals at the apartment and the likelihood that drugs might be concealed or destroyed could, under proper circumstances, show exigent circumstances. It then noted that Vandiver and the other individuals had cooperated with the officer. It observed that none of the individuals in the living room attempted to flee or tried to conceal or destroy evidence. 19 Kan. App. 2d at 793. Based on these facts, it concluded that there were no exigent circumstances required by K.S.A. 22-2509(b) to justify the officer’s search of Vandiver.
As authority for its conclusion, the Court of Appeals noted that the United States Supreme Court reached a similar conclusion in Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). In that case, an Illinois state court issued a warrant authorizing the search of a tavern and the bartender for evidence of the offense of possession of a controlled substance. Upon entering the tavern to execute the warrant, police officers announced their purpose and advised the patrons of the tavern that they were going to conduct a cursory search of each patron for weapons. The officer who performed a pat-down of Ybarra, one of the customers, felt what he described as a cigarette pack with objects in it. The officer did not remove the object from Ybarra’s pocket. After patting down other customers, the officer again frisked Ybarra, retrieved the cigarette pack from his pants pocket, and discovered six tinfoil packets of heroin. Ybarra was indicted for unlawful possession of a controlled substance. He filed a pretrial motion to suppress the contraband seized from his person during the execution of the search of the tavern. The trial court denied the motion, finding that the search had been conducted under the authority of an Illinois statute practically identical to K.S.A. 22-2509. Ybarra was convicted, and the Illinois appellate court affirmed. 444 U.S. at 87-90.
The United States Supreme Court granted certiorari. It noted that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. It stated that a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. It concluded that this requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the legitimate expectations of privacy of persons, not places. 444 U.S. at 91. The Court ruled that ”[t]he ’narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” 444 U.S. at 94. It concluded that under the doctrine of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the initial frisk of Ybarra was not supported by a reasonable belief that Ybarra was armed and presently dangerous, which is required to form the predicate to a pat-down of a person for weapons. 444 U.S. at 92-93.
In State v. Lambert, 238 Kan. 444, 710 P.2d 693 (1985), this court was required to determine if Ybarra applied to searches of private property. In Lambert, police officers, armed with a search warrant authorizing the search of an apartment and its male occupant for cocaine, entered the apartment, where they discovered three women. One of the women was sick in bed, and the other two were seated at a table in the kitchen. On the table between the two women was a serving tray containing marijuana and a partially burned, hand-rolled marijuana cigarette. The officer ob served the contraband and placed all three women under arrest for possession of marijuana. The officer moved the women into the living room. He then returned to the kitchen and searched a purse that was on the kitchen table. Marijuana and amphetamine were found in the purse. When the defendant acknowledged ownership of the purse, she was arrested for possession of methamphetamine. The defendant’s motion to suppress the evidence obtained from her purse was denied by the trial judge. At the hearing on defendant’s motion for a new trial, the trial judge concluded that, based on Ybarra and Terry, he had erred by failing to suppress the evidence. The State appealed, claiming that Ybarra only applied to searches of property open to the public and not to searches of private property.
The Lambert court held that “the principles stated in Terry and Ybarra apply equally to searches conducted on private property or on property open to the public” and refused to overrule the trial court’s suppression of the evidence. 238 Kan. at 448, 450. The court pointed out that under proper circumstances, the police may search a nonresident visitor or the visitor’s belongings in the course of executing a warrant for a premises search. Such circumstances include where the individual consents to being searched, where the item is in plain view on the person or in the person’s possession, where there has been a valid arrest, and where there is probable cause to search plus exigent circumstances. It noted that a search may also be conducted under the Terry exception, which allows a stop and frisk if there is a reasonable belief that the person is armed and dangerous. 238 Kan. at 450.
Significantly, the Lambert court noted that it had previously considered whether K.S.A. 22-2509 sanctions the search of a nonresident or his or her belongings on the premises during the execution of a search warrant in State v. Loudermilk, 208 Kan. 893, 494 P.2d 1174 (1972).
In Loudermilk, the police had obtained a warrant to search a Wichita residence for opium. The affidavit for the search warrant stated that the persons on the premises were conducting illegal drug sales. The warrant authorized the search of the person, place, or things which contained opium. 208 Kan. at 894. In executing the warrant, defendant was searched and a packet of heroin was found in his billfold. In upholding the search, the court stated:
“The application and attached affidavit fully established probable cause to believe that opium was concealed on the described premises, or on the persons of those present. Narcotics, such as heroin, are easily concealed on a person and may readily be disposed of. Where, as in this case, probable cause to believe that a drug is kept or concealed on certain described premises is established to the satisfaction of a proper magistrate, the search of a person found on the premises in the execution of a search warrant is not only reasonable, but necessary to secure effective enforcement of the Uniform Narcotic Drug Act.” 208 Kan. at 898.
The Lambert court held that “[b]ecause the affidavit accompanying the application stated that persons within the premises were conducting illegal drug sales, Loudermilk is distinguishable and not overruled by Ybarra.” 238 Kan. at 449.
The State asserts that the legal conclusion in Loudermilk is based on similar facts and permits the search of Vandiver. We disagree with the State’s conclusion that Loudermilk applies. For a warrant to authorize a search of all persons on the premises where the warrant is being executed, thé affidavit must contain facts sufficient for the issuing magistrate to believe that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the items sought by the warrant. Horn, 15 Kan. App. 2d 365, Syl. ¶ 2. The application for the search warrant of Moneymaker’s apartment did not state that persons other than the occupant would be in the apartment or request that persons on the premises be searched. The affidavit to obtain the search warrant did not provide a factual basis for the issuing magistrate to determine that, other than the occupant, persons within the premises would be involved in or conducting illegal drug sales.
In circumstances where a police officer executing a search warrant of the premises observes unusual conduct by individuals not named in the search warrant which leads the officer reasonably to conclude in light of his or her experience that criminal activity may be afoot and that the persons with whom the officer is deal ing may be armed and presently dangerous, the officer is entitled for the officer s protection and the protection of others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault the officer. See K.S.A. 1994 Supp. 22-2402; Terry v. Ohio, 392 U.S. at 30-31.
In this case, however, there is no substantial competent evidence that exigent circumstances existed to authorize the search of Vandiver. There is nothing to indicate that the officer was concerned with his safety. After entering the apartment and executing the search warrant, the officer did not recognize Vandiver, had no reason to believe that Vandiver had previously committed an offense, and did not have sufficient facts to arrest Vandiver for possession of the marijuana in plain view. Under these facts, the Court of Appeals correctly determined that under K.S.A. 22-2509(b), the officer executing the search warrant had no reason to detain Vandiver to prevent the disposal or concealment of any objects particularly described in the warrant.
The judgment of the Court of Appeals reversing the district court is affirmed. The judgment of the district court is reversed. The case is remanded for a new trial.
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The opinion of the court was delivered by
Allegrucci, J.:
William Davis and Fern Stultz sued to enjoin the City of Leawood (Leawood) from imposing special assessments on their properties for the purpose of financing the improvement of State Line Road. On cross-motions for summary judgment, the district court granted the injunction on the ground that only city-at-large funds, not special assessments, may be used to improve a designated main trafficway, and Leawood appeals. The appeal was transferred to this court pursuant to K.S.A. 20-3017.
The following facts are not in dispute: William R. Davis resides on property he owns at 11316 State Line Road in Leawood. Fern Stultz resides on property she owns at 11420 State Line Road in Leawood. In 1988, Leawood enacted an ordinance which designated 14 streets, including State Line Road, as “main traffic-ways” pursuant to K.S.A. 12-685. In March 1993, Hallbrook Farms Associates, L.P., (Hallbrook) pursuant to K.S.A. 12-6a01 et seq., filed a petition with Leawood for the improvement of State Line Road from approximately 112th Terrace to 119th Street. Leawood created the improvement district requested by Hall-brook. The properties of Hallbrook, Davis, and Stultz comprise the improvement district, and State Line Road is being improved where it abuts their properties. At the time the parties’ cross-motions for summary judgment were considered, no assessments had been made to the Davis or Stultz properties.
We first determine if Leawood’s designation of State Line Road as a main trafficway under K.S.A. 12-685 precludes its financing improvements to State Line Road by special assessments under K.S.A. 12-6a01 et seq. The district court decided that special assessments may not be used to improve a designated main trafficway. The decision rests on the district court’s construction of state statutes which govern financing of city street improvements.
Among the statutes at issue are K.S.A. 12-685 through K.S.A. 12-690, die Main Trafficway Act, which was enacted in 1959 to authorize cities to designate and improve main trafficways. The pertinent provisions of the Main Trafficway Act state:
“The governing body of any city is hereby authorized and empowered to designate and establish, by ordinance!,] as a main trafficway any existing or proposed street, boulevard, avenue or part thereof, within such city, the primary function of which is, or shall be, the movement of through traffic between areas of concentrated activity within the city or between such areas within the city and traffic facilities outside the city performing the function of a major trafficway. Such designation by the governing body shall be final and conclusive.” K.S.A. 12-685.
“The governing body of such city shall have power to improve or reimprove or cause to be improved or reimproved, any main trafficway or trafficway connection designated and established under fhe provisions of this act. Such improvement or reimprovement may include grading, regrading, curbing, recurbing, guttering, reguttering, paving, repaving, macadamizing, remacadamizing, constructing, reconstructing, opening, widening, extending, rounding comers, straightening, relocating, building any necessary bridges and approaches thereto, viaducts, overpasses, underpasses, culverts and drainage, trafficway illumination, traffic control devices, pedestrian ways, or other improvements, or any two (2) or more of such improvements or reimprovements and the acquisition of right-of-way by purchase or condemnation when necessary for any of such purposes. The governing body may also employ highway and traffic engineering assistance when necessary to the proper development and planning of such improvement or reimprovement.” K.S.A. 12-687.
“All costs of improvements or reimprovements authorized under the provisions of this act, including acquisition of right-of-way, engineering costs, and all other costs properly attributable to such projects shall be paid by fire city at large from the general improvement fund, general revenue fund, internal improvement fund, or any other fund or funds available for such purposes, or by fhe issuance of general improvements bonds.” K.S.A. 12-689.
“This act shall be supplemental to all ofher acts relating to the improvement of streets, and shall not prevent the use of other statutes for the improving of any such street, boulevard or avenue.” K.S.A. 12-690.
Also at issue is the General Assessment and Improvement Law, K.S.A. 12-6a01 et seq., enacted in 1957. K.S.A. 12-6a02 provides in pertinent part:
“As a complete alternative to all other methods provided by law, the governing body of any city is hereby authorized to make, or cause to be made, municipal works or improvements which confer a special benefit upon property within a definable area of the city and may levy and collect special assessments upon property in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property by any such municipal work or improvement and-to provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of such special assessments as hereinafter provided. Such work or improvements may include the following without limitation because of enumeration:
(a) Acquisition of property or interest in property when necessary for any of the purposes authorized by this act.
(b) To open, widen and extend streets and otherwise to improve paving and other surfacing, gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage works incidental thereto, and service connections from sewer, water, gas and other utility mains, conduits, or pipes necessarily lying within curb lines.”
The method used by Hallbrook for requesting improvement of State Line Road is set out in K.S.A. 12-6a04(2), which provides for the filing of a petition by a majority of the resident owners within a proposed improvement district. “Improvement district” is defined in K.S.A. 12-6a01(f) as “an area deemed by the governing body to be benefited by an improvement and subject to special assessment for all or a portion of the cost of the improvement.” Leawood authorized the improvement of State Line Road from approximately 112 Terrace to 119th Street pursuant to K.S.A. 12-6a06, which provides in pertinent part:
“The governing body may, by a majority vote of the entire members-elect thereof, at any time within six (6) months after the final adjournment of the hearing on the advisability of making the improvements, adopt a resolution authorizing the improvement in accordance with the finding of the governing body upon the advisability of the improvement, as provided in K.S.A. 12-6a04, which shall be effective upon publication once in the newspaper . . . .”
Apportionment of improvement costs is the subject of K.S.A. 12-6a07:
“(a) The city may pay such portion of the cost of the improvement as the governing body may determine, but not more than ninety-five percent (95%) of the total cost thereof. The share of the cost to be paid by the city at large shall be paid in the manner provided by K.S.A. 12-6al4.
“(b) If any property deemed benefited shall by reason of any provision of law be exempt from payment of special assessments therefor, such assessment shall, nevertheless, be computed and shall be paid by the city at large.”
The pertinent provisions which control financing of improvement costs are found in K.S.A. 12-6a08(a):
“The portion of the cost of any improvement to be assessed against the property in the improvement district as determined in K.S.A. 12-6a04, and amendments thereto shall be apportioned against the property in accordance with the special benefits accruing thereto by reasons of such improvement. The cost may be assessed equally per front foot or per square foot against all lots and pieces of land within such improvement district or assessed against such property according to the value of the lots and pieces of land therein. The value of such property shall be determined by the governing body of the city with or without regard to the buildings and improvements thereon or the cost may be determined and fixed on the basis of any other reasonable assessment plan which will result in imposing substantially equal burdens or shares of the cost upon property similarly benefited.”
In this case, the district court stated that it was addressing the interplay between the General Improvement and Assessment Law and the Main Trafficway Act as a matter of first impression. The district court decided that the Main Trafficway Act required the improvement of State Line Road, a designated main trafficway, to be financed with city-at-large funds and that the General Improvement and Assessment Law is restricted to local projects and cannot be used for financing main trafficway improvements. Thus, the district court concluded that there were alternative grounds for enjoining Leawood “from proceeding with its improvement district financing plan for State Line Road.” Simply stated, the district court determined the statutes in question to be mutually exclusive in financing street improvements.
The following standards are applied in summaxy judgment cases:
“The burden on tire party seeking summaxy judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Hurlbut v. Conoco, Inc., 253 Kan. 515, 519-20, 856 P.2d 1313 (1993).” Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
With regard to the standard to be applied in cases involving the particular subject matter at hand, this court has stated:
“A challenge to the inclusion of property in a benefit district was made in Snyder Realty Co. v. City of Overland Park, [208 Kan. 273, 492 P.2d 187]. The court there recognized that citizens challenging tire action of the governing body of a city must shoulder a heavy burden. The rules have been summarized in Giddings v. City of Pittsburg, [197 Kan. 777, 421 P.2d 181,]as follows:
‘In defining the boundaries of an improvement district, the members of the governing body of a city are bound to act fairly and in good faith.
‘It is a general rule of law that courts will not enjoin action undertaken by city governments unless a clear abuse of discretion has been shown.
‘Municipal authorities are vested with broad discretion in establishing an improvement district pursuant to K.S.A. 12-6a04, and in levying assessments against property located therein, and their determination is not subject to review in the absence of a showing of fraudulent or arbitrary conduct.’ (Syl. ¶¶ 3, 4, 5.)” Davies v. City of Lawrence, 218 Kan. 551, 558, 545 P.2d 1115 (1976).
“[T]he questions of the existence and extent of special benefits are questions of fact to be determined by the authorized governing body. The exercise of the governing body’s judgment in this regard is presumed to be legal, equitable and just and only if palpable injustice results from the method applied so that the burden imposed is entirely disproportionate to benefits received will courts intercede. (Mullins v. City of El Dorado, [200 Kan. 336, 436 P.2d 837].)” Board of Education v. City of Topeka, 214 Kan. 811, 819, 522 P.2d 982 (1974).
The issue of statutory construction, which dominates this case, is subject to unlimited review. Steele v. City of Wichita, 250 Kan. 524, 527, 826 P.2d 1380 (1992).
On appeal, Leawood first directs the court’s attention to the wording of the statutes at issue. Leawood argues that the statutes are plain and unambiguous. This court has stated: “The fundamental rule of statutory construction is that the intent of the legislature governs.” First Page, Inc. v. Cunningham, 252 Kan. 593, 601, 847 P.2d 1238 (1993). The intent of the legislature is to be derived in the first place from the words used. Hunter v. Haun, 210 Kan. 11, 13, 499 P.2d 1087 (1972). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Words in common usage should be given their natural and ordinary meaning. State ex. rel. Secretary of SRS v. Clear, 248 Kan. 109, 116, 804 P.2d 961 (1991). In In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989), we stated:
“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.”
With the above principles in mind, we first examine the Main Trafficway Act. Both parties suggest that the intent of the legislature is expressed plainly and unambiguously in the language of the legislation, but what Leawood means is that 12-690 is plain and unambiguous and what Davis and Stultz mean is that 12-689 is plain and unambiguous. In fact, it may be more accurate to say that what Davis and Stultz mean is that the phrase “shall be paid by the city at large” from 12-689 is plain and unambiguous.
It is Leawood’s position that under 12-685, it designated State Line Road as a main trafficway. K.S.A. 12-687, according to Lea-wood, gives it the “power to improve or reimprove or cause to be improved or reimproved, any main trafficway.” Leawood did not, however, authorize the improvements under 12-687. Instead, the argument continues, the improvements were authorized under 12-6a06, and the improvement district comprised of the properties of Hallbrook, Davis, and Stultz was created under 12-6a04. For this reason, 12-689, which involves “costs of improvements or reimprovements authorized under the provisions of this act” does not apply. (Emphasis added.) Thus, pursuant to the authorization in 12-690 for “the use of other statutes for the improving of any such street,” Leawood chose to assess State Line Road improvement costs against the properties in the improvement district under 12-6a08. Leawood presents this argument as follows:
“The Main Trafficway Act contains a three step process for making and funding street improvements. First, a city must designate a street as a main trafficway. See K.S.A. § 12-685 (1991). Second, a city must authorize the improvements themselves pursuant to K.S.A. § 12-687. Third, a city may choose a manner of funding under K.S.A. § 12-689. A city may also choose other statutes relating to the improvement of streets to make and fund such an improvement. K.S.A. § 12-690.”
In an amicus brief, the Attorney General supports Leawood in this three-step construction of the Main Trafficway Act. Amicus writes that K.S.A. 12-687 contemplates some “official action by the governing body to authorize, describe and provide for the financing of particular improvements to the street or roadway in question.” The official action is the second step, after designation by ordinance, and it “normally takes the form of an ordinance or resolution passed by the governing body.” The ordinance or resolution serves as a means of setting forth a description of the improvements, an estimate of costs, and, perhaps, the method(s) of financing. Once the step-two official action has been taken authorizing the improvement under the Main Trafficway Act, the theory goes, the governing body may select financing options under 12-689.
“In the absence of such official action by the governing body, as represented by steps two and three, the Attorney General could not approve such bonds or notes because it would be impossible to tell what the nature of the improvements were, whether they were authorized by K.S.A. 12-687, or what principal amount of bonds or notes the city has authorized to pay for tire mysterious improvements.”
Thus, in the view of the Attorney General, “K.S.A. 12-689 has no application to improvements to a main trafficway which have not been authorized under the authority of K.S.A. 12-687.” Under this theory, the first step — enacting an ordinance designating a street as a main trafficway — may be taken without causing a chain of consequences for future improvements. In contrast, Davis and Stultz contend that once a city governing body has designated a street as a main trafficway, it has irrevocably locked the city into paying the costs for any improvements to that street exclusively by means specified in 12-689.
With regard to the third step, Davis and Stultz argue that Lea-wood’s position ignores the plain language of 12-689, which provides that costs of improvements authorized under the Main Trafficway Act “shall be paid by the city at large.” Leawood, as we have seen, contends that 12-689 need not apply here because improvements to State Line Road were not authorized under the Main Trafficway Act. Thus, Leawood’s position is that a city may elect to use a source of funding specified in 12-689; Davis and Stultz’s position is that 12-689 applies and that its language is mandatory. They cite Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968), for the rule that determining whether the legislature intended language to be mandatory or directory should be done by considering the entire act rather than isolated provisions. The court stated: “Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other.” 200 Kan. at 657. For discussion of the meaning of “shall” in a street improvement statute, Davis and Stultz point to Bell v. City of Topeka, 220 Kan. 405, 411-13, 553 P.2d 331 (1976). The statute at issue in Bell was K.S.A. 13-10,115, and the pertinent language was: “[T]he remaining cost shall be assessed against the adjacent real properly, without regard to the value of the improvements, to the middle of the block on either side.” 220 Kan. at 411. Although the court’s discussion is lengthy, the following is specifically relied on by Davis and Stultz:
“It is true, the word ‘shall’ when employed in a statute has been read to mean ‘may.’ (See Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244; and Wilcox v. Billings, supra.) This interpretation of ‘shall’ has been approved when the term was employed in a statutory provision directing the mode of proceeding by public officers, and the legislative intention was to secure order, system and dispatch in proceedings, and where the rights of parties could not be injuriously affected by the disregard of die particular statutory provision. In diis connection we held in City of Hutchinson v. Ryan, 154 Kan. 751, 121 P.2d 179:
‘In determining whether statutory provisions are mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, die provision is mandatory, but where die provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of the public business, the provision is directory.’ (Syl. 1.)
In die statutory context in which ‘shall’ is used in K.S.A. 13-10,115 it is not employed to direct a mode of proceeding and to secure order and dispatch, but rather to declare specifically how assessments shall be taxed with respect to both platted and unplatted land. When the taxing clause is read in the context of the entire statute, it seems clear that the purpose of die legislature could not be accomplished in a manner other than that prescribed. Obviously, die taxing clause in question affects substantial property rights and is the very essence of the tilings to be done. We have no hesitancy in holding the statutory provision in question to be mandatory.” 220 Kan. at 412-13.
In Bell, the court gave the following history of Topeka’s improving Burlingame Road: Consideration began in 1965. After several years of studies and public hearings, the city commission adopted Resolution No. 1443 in April 1968. The resolution described the extensive improvements, recited that they would be made under an agreement with Shawnee County, set each governmental entity’s share of the cost and the city/benefit district apportionment, and “indicated that the city was proceeding under K.S.A. 13-10,115.” 220 Kan. at 407. In July 1968 the city commission passed an ordinance authorizing the improvements in accordance with Resolution No. 1443. “The ordinance recited that no protests, in compliance with 13-10,115, had been filed against the resolution.” 220 Kan. at 408. K.S.A. 13-10,115 provides in pertinent part that costs to be borne by the benefit district “shall be assessed against the adjacent real property ... to the middle of the block on either side.” In an effort to standardize irregularities created by the meandering street, the city ignored the express requirement of 13-10,115 and created fictional blocks which reduced the number of parcels to be assessed from 250 to 80. 220 Kan. at 408, 411. The court agreed with property owners within the contrived benefit district that
“the city, once having elected to proceed under 13-10,115, is bound to follow the provisions thereof. It follows that affected property owners are entitled to have their property assessed according to tire statutory method, and a substantial departure from the method prescribed by the legislature will invalidate the assessment.” 220 Kan. at 411.
Davis and Stultz argue that the court’s reasoning in Bell with regard to K.S.A. 13-10,115 applies as well to 12-689.
It appears that Davis and Stultz are arguing that 12-690’s license to use other acts does not include using them for financing because city-at-large financing of improvements to main traffic-ways is mandatory under 12-689. If 12-690 has any meaning under this argument, it must be that the statute permits a city to use other acts for purposes other than financing improvements of main trafficways. If this was the intent, it would have been quite simple for the legislature to say so by beginning the section with a reference to 12-689 or with a proviso such as “Except for the financing of costs of improving main trafficways, . . . .” The legislature, however, did not expressly limit the operation of 12-690 to aspects of main trafficway improvement other than financing. Nor do Davis and Stultz flesh out their argument with examples of aspects of improvements other than financing or bring to the court’s attention other acts or statutes which, in their view, could be used for the improvement of main trafficways.
In McCarthy v. City of Leawood, 257 Kan. 566, 894 P.2d 836 (1995), the central issue was whether the City had authority under the home rule powers to enact an impact fee ordinance. In addressing that issue, it was necessary to detennine if the ordinance was in conflict with the Main Trafficway Act. In that determination, we had to interpret K.S.A. 12-689 and K.S.A. 12-690. In McCarthy, we said:
“We agree with the landowners that 12-689 and 12-690 are unambiguous. However, as pointed out by the district court:
‘Plaintiffs rest their case upon their construction of one section of the Act, K.S.A. 12-689, and they ignore entirely one key phrase in that section. Plaintiffs highlight the following language of the statute: “All costs . . . shall be paid by die city at large . . . .” If that were the entirety of the relevant provisions, plaintiffs would be correct. But plaintiffs ignore this language: “All costs of improvements . . . authorized under the provisions of this act . . . shall be paid by the city at large . . . .” (emphasis added.) That language — when construed in conjunction with K.S.A. 12-690 — leads to a much different conclusion.’
The landowners not only ignore the above language but also the clear import of K.S.A. 12-690. K.S.A. 12-690 provides that this Act ‘shall be supplemental to all other acts’ relating to the improvement of streets and ‘shall not prevent the use of other statutes for the improving of any such street.’ As noted by the district court:
‘The Main Trafficway Act comes into play only when a city has designated a street as a main trafficway. When no such designation has been made, the Act has no effect whatsoever. Thus, K.S.A. 12-690 is not needed at all in cases in winch a street is not designated as a main trafficway. Accordingly, to give effect to the legislative intent (and to find meaning in all parts of the statute), K.S.A. 12-690 must have meaning in cases in which a designation has been made under the Act.
‘Plaintiffs simply say that once a designation has been made, all costs must be paid by city-at-large funds. If the plaintiffs’ argument were correct, K.S.A. 12-690 would have no meaning in such cases. This interpretation would read K.S.A. 12-690 entirely out of the Act.’
“If K.S.A. 12-690 has any meaning, it must be that the statute permits a city to use other Acts for the purpose of financing improvements to all streets, including those designated as a main trafficway. If this was not the intent, the legislature could have easily and clearly stated that it was limited to the exclusive financing of main trafficways.
“The landowners argue that the language ‘shall be paid by the city at large’ in 12-689 is mandatory and not directory. Thus, once a city designated a street as a main trafficway, the city was required to pay for the improvements from at-large funds.
“In this regard, the district court viewed the language of 12-689 not as either mandatory or directory but more as one piece which must be fitted into a whole. There, tire district court concluded that the word ‘shall’ in 12-689, if read to limit a city’s power to use alternative financing sources, stripped 12-690 of meaning. In order to harmonize and give meaning to all the various provisions of the Main Trafficway Act, the district court construed 12-690 to permit and 12-689 not to exclude the use of city-at-large financing in conjunction with other forms of financing. It seems quite reasonable to approach the statutory construction in this way where the issue has been posed as one of preclusion or exclusivity rather than mandating or directing. The question is whether cities are precluded from using means of financing not specified in 12-689 or, phrased another way, whether the means specified in 12-689 are exclusive.
“K.S.A. 12-689 cannot be construed by itself but must be considered together with K.S.A. 12-690 and other provisions of the Main Trafficway Act. In so doing, we must consider the whole Act and not read one statute in isolation from the other.
“When the two statutes are read together, the district court’s interpretation is consistent, harmonious, and sensible. The designation of a street as a main trafficway does not prevent benefits accruing to the landowners within a benefit district. In that event, there is no logical reason to preclude financing the improvements under the general improvement and assessment statutes or the impact fee ordinance. If the legislature had intended the Main Trafficway Act to be an exclusive means of financing a street so designated, then it could easily have said so. We conclude that the Main Trafficway Act does not preclude the use of impact fees together with city-at-large funds to finance the costs of improvements. Thus, we find no conflict exists between the Main Trafficway Act and Leawood’s impact fee ordinance.”
Davis and Stultz direct our attention to the final sentence of 12-685: “Such designation [as a main trafficway] by the governing body shall be final and conclusive.” “If the words ‘final and conclusive’ are given their natural and ordinary meaning,” argue Davis and Stultz, once a main trafficway always a main trafficway. They undoubtedly are correct in this argument, but the question remains whether improvement of a main trafficway may be financed under the General Improvement and Assessment Law rather than under the Main Trafficway Act. There seems to be general agreement among the proponents of financing options that the purpose of making designations “final and conclusive” is to ensure the viability of bonds which may be issued pursuant to the Main Trafficway Act.
Davis and Stultz rely entirely on the affidavit of Arden Ensley, which they submitted in support of their motion for summary judgment, to explain' the meaning of K.S.A. 12-690. Ensley worked as a staff attorney for the League of Kansas Municipalities, which “helped to draft” and lobbied for passage of the Main Trafficway Act. Ensley stated that he “was personally involved in the drafting.” Here are the pertinent paragraphs of his affidavit:
“5. Prior to 1959, cities could not authorize issuance of bonds to finance the improvement of roadways with at-large funds without designating them ‘main trafficways’, ‘main arterial trafficways’, ‘major traffic thoroughfares’, ‘main thoroughfares’ or something similar thereto and qualifying them under one of several pieces of special legislation enacted into law for cities of various sizes.
“6. The main trafficway act of 1959 applied to cities of all sizes and provided a uniform means for financing improvements to designated main trafficways.
“7. K.S.A. 12-690 states that tire main trafficway act is supplemental to all other acts relating to the improvement of streets. This section was inserted in the act to assure that the special legislative acts already on the books and not specifically repealed regarding main trafficway improvements would not be invalidated. The act was designed to provide an independent alternative to other financing methods and not as a part of a finance package to be used in combination with other acts; nor was it intended to authorize any other kind of financing of streets designated as main trafficways under this act.”
In the district court, Leawood argued that Ensley lacked sufficient personal knowledge of the legislature’s intent. The district court disagreed and, in addition, noted that Leawood had not submitted a competing affidavit. The district court concluded: “Although it is the intent of the legislature and not the legislation’s proponents that is controlling, the Court finds Mr. Ensley s recollection consistent with the straightforward legislative mandate in K.S.A. 12-689 requiring payment of main trafficway improvements from city at large funds.”
Leawood also argues that the affidavit contains allegations which lack proper foundation and therefore would not be admissible in evidence. Leawood contends that it is the legislature’s intention rather than Ensley s which is relevant and that Ensley s affidavit contains nothing showing that he has any basis for knowing what the legislature intended. We find merit in this argument.
Leawood cites Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 257, 577 P.2d 1202, rev. denied 225 Kan. 844 (1978), in which a provision of the Kansas Automobile Injury Reparations Act was at issue. That Act became effective July 1, 1973. In its 1978 opinion, the Court of Appeals wrote:
“We are aware that defendant has presented a recently prepared affidavit of die chairman of the House subcommittee wherein it is said the legislative intent was that survivors’ benefits were to replace only the monthly earnings of tire deceased actually lost by the survivors. We are unable to square the affiant’s statements with the facts of legislative action. We believe the latter speaks more loudly and we are unaware of precedent for judicial ascertainment of legislative intent through statements of legislators made years after the event.” 2 Kan. App. 2d at 257.
In the present case, the gap between enactment and affidavit is 35 years rather than the 5 years which the Court of Appeals referred to as “years after the event.” And, of course, the affiant is a lobbyist rather than a legislator.
Davis and Stultz would distinguish Hand on the ground that Ensley was a draftsman rather than a legislator. They contend that the statements of a draftsman deserve more credit than those of a legislator. In support of this proposition, they first cite encyclopedia statements that a draftsman’s word may be considered on conditions prevailing at the time of enactment and on the mischief which the legislation was intended to remedy. There is a statement to this effect in 73 Am. Jur. 2d, Statutes § 177, but it seems apparent from the context that the draftsman contemplated in this section is a legislator. Section 177 is called “Statements of authors or sponsors of bill,” with the two treated as one, and the section falls under the heading, “Action or Inaction of Legislators.” See 73 Am Jur. 2d, p. 372. Furthermore, statements which are the subject of the section are not post-enactment statements. They are opinions voiced “when the bill was pending” and statements made “in advocating its adoption.” 73 Am. Jur. 2d, Statutes § 177.
Also in support of their proposition that a draftsman’s statements are more worthy of consideration than those of a legislator, Davis and Stultz contrast the treatment afforded statements in United States v. Monsanto, 491 U.S. 600, 105 L. Ed. 2d 512, 109 S. Ct. 2657 (1989), and Kosak v. United States, 465 U.S. 848, 79 L. Ed. 2d 860, 104 S. Ct. 1519 (1984). They contend that statements of legislators were rejected in Monsanto and the statements of a draftsman were considered in Kosak. The statements at issue in Monsanto were made after the statute’s adoption. 491 U.S. at 610. The statements at issue in Kosak were made before enactment. They were contained in a report by a Special Assistant to the Attorney General, who had been assigned the task of coordinating the views of government departments about the scope of a tort claims statute. 465 U.S. at 857 n.13. His draft bill also was contained in the report. With regard to its consideration of the report, the Supreme Court majority stated:
“We agree with the dissent that, because the report was never introduced into the public record, the ideas expressed therein should not be given great weight in determining the intent of the Legislature. [Citation omitted.] But, in the absence of any direct evidence regarding how Members of Congress understood the provision that became § 2680(c), it seems to us senseless to ignore entirely the views of its draftsman.” 465 U.S. at 857 n.13.
Dissenting, Justice Stevens wrote: “The intent of a lobbyist — no matter how public spirited he may have been — should not be attributed to the Congress without positive evidence that elected legislators were aware of and shared the lobbyist’s intent.” 465 U.S. at 863.
Leawood contends that the Kansas Court of Appeals in Hand applied the majority rule when it refused to consider post-enactment statements, even of legislators. In Monsanto, the United States Supreme Court held that assets which the accused sought to use for attorney fees for his defense were not exempted from restraint or forfeiture by the drug proceeds forfeiture statute. Monsanto relied on comments made by legislators following enactment. Rejecting his position, the Court stated: “As we have noted before, such postenactment views ‘form a hazardous basis for inferring the intent’ behind a statute.” 491 U.S. at 610. In Picture Rocks Fire Dist. v. Pima County, 152 Ariz. 442, 733 P.2d 639 (Ariz. App. 1986), the fire district argued that it was error for the trial court to exclude the deposition of a state senator which it had “offered as evidence of both the legislature’s intent with respect to this law and individual legislators’ mental processes.” 152 Ariz. at 444. The appellate court found no error for this reason:
“ ‘The rule is clearly established in Arizona that one member of a legislature which passes a law is not competent to testify regarding the intent of the legislature in passing that law.’ [Citation omitted.] See also Tucson Gas & Electric Company v. Schantz, 5 Ariz. App. 511, 428 P.2d 686 (1967) (‘[T]he testimony or opinions of individual members of the legislative body are not admissible.’)” 152 Ariz. at 444.
The Maine rule is that “post-enactment comments are not legally cognizable legislative history.” Seven Islands Land Co. v. Maine Land Use Reg., 450 A.2d 475, 481 n.9 (Me. 1982). In California, the Court of Appeal stated:
“It is a long-standing principle that we do not consider as evidence in favor of a particular construction of a statute, the motives or understandings of individual legislators who voted for the bill. [Citations omitted.] Nor do we make exception to this rule simply because the legislator whose opinion is offered actually authored the bill.” O’Loughlin v. Workers' Comp. Appeals Bd., 222 Cal. App. 3d 1518, 1524, 272 Cal. Rptr. 499 (1990).
As reason for the rule, the court stated that one legislator’s understanding of the meaning reflects only his or her personal view and “is not indicative of legislative intent because there is no evidence or assurance that other legislators shared this opinion.” 222 Cal. App. 3d at 1523-24. The rule followed in the Indiana courts is more lenient than those already reviewed. There, the journals of the legislative bodies may be considered for the purpose of inferring intent, but “the motives of individual sponsors of legislation cannot be imputed to the legislature, absent statutory expression.” O’Laughlin v. Rarton, 582 N.E.2d 817, 821 (Ind. 1991). The last case cited by Leawood is Metro Mobile CTS, Inc. v. Centel Corp., 694 F. Supp. 806 (D. Kan. 1988), in which a temporary restraining order was granted against the defendant corporation pending consideration of a bill enacted in the 1988 Kansas Legislature. In a footnote, the court stated: “Although plaintiffs sought to challenge the statute’s constitutionality in part by offering affidavits from legislators, the court notes defendant’s objection to this kind of evidence and assures defendant that those affidavits played no part in this decision.” 694 F. Supp. at 808 n.2.
We find the reasoning and rule stated in the above opinions to be persuasive. This court has said that its “function is to ascertain the legislative intent and purpose, by all legitimate methods, to the end that its will may be made effective.” Clifford v. Eacrett, 163 Kan. 471, 475, 183 P.2d 861 (1947). Because the post-enactment statements of individual legislators would not be reliable indicators of the legislative intent, their use should not be among the “legitimate methods” sanctioned by this court. An even stronger case can be made for excluding consideration of the post-enactment statements of a lobbyist.
The district court rationalized consideration of the lobbyist’s affidavit on the ground that it found “Ensley’s recollection consistent with the straightforward legislative mandate in K.S.A. 12-689 requiring payment of main trafficway improvements from city at large funds.” This language parallels the proviso in the rule stated by the Indiana Supreme Court: “[T]he motive of individual sponsors of legislation cannot be imputed to the Legislature unless there is a basis for it in its statutory expression.” O’Laughlin v. Barton, 571 N.E.2d 1258, 1260, aff’d on rehearing 582 N.E.2d 817 (Ind. 1991). This rule amounts to no rule at all. It permits a post-enactment statement to be considered if it supports the construction the court is inclined to place on a statute and to be ignored if it does not. The district court should not have admitted Ensley’s affidavit into evidence or considered it in determining legislative intent. We conclude the district court erred in holding that the Main Trafficway Act mandated that the costs of improvements to State Line Road be paid with city-at-large funds.
We next consider if the General Improvement and Assessment Law is restricted to “local projects only where the objective is less than city-wide in scope.” The district court concluded that 12-6a01 et seq. does not authorize improvement district financing for improving main trafficways. The premise of the district court’s analysis was that K.S.A. 12-6a02 restricts the city’s levying of special assessments “to local improvements ‘. . . which confer a special benefit upon property u>ithin a definable area of the city.’ ” K.S.A. 12-6a02 provides in pertinent part: “[T]he governing body of any city is hereby authorized to make, or cause to be made, municipal works or improvements which confer a special benefit upon property within a definable area of the city.” The district court concluded that a main trafficway, as defined in 12-685, does not fall within the restricted categoxy. K.S.A. 12-685 provides for the designation and establishment as a main trafficway of “any . . . street . . . , the primary function of which is . . . the movement of through traffic between areas of concentrated activity within the city or between such areas within the city and traffic facilities outside the city performing the function of a major trafficway.” Referring to the definition, the district court stated: “Consequently, main trafficway improvements are not sufficiently limited in scope to qualify as 'local’ for improvement district financing.”
The district court found support for its conclusion in the Lea-wood ordinance by which State Line Road was designated a main trafficway and in an Interlocal Agreement among the cities of Leawood and Kansas City, Missouri, and Johnson County, Kansas. Leawood Ordinance No. 1130 C repeats the main trafficway definition of 12-685. The agreement provides for cooperation among the governing bodies in improving State Line Road from Carondelet Drive to 135th Street. The portion of the State Line Road improvement at issue here is approximately 112th Terrace to 119th Street. The district court quoted the purpose of the agreement as being “ 'to assure a more adequate, safe, and integrated roadway network in the developing and incorporated areas of Johnson County, Kansas.’ ” The conclusion drawn by the district court was stated as follows:
“Significantly, the expansive scope of the State Line project under the Interlocal Agreement belies the notion of a local improvement. Clearly, the purpose of these improvements is not to primarily benefit three tracts of land as the City suggests, but instead to serve broader interests. Thus, a major trafficway cannot be considered a local concept.”
We find this logic to be flawed. The district court first characterized the discrete improvement of State Line Road as “expansive” in scope due to its being a segment of an integrated roadway network. In this regard the district court offered the justification that even though main trafficways may be constructed and connected in stages, they are general rather than local in nature because that determination depends on “the primary purpose of the improvement.” No authority is given for the proposition. Second, the district court generalized from the specific improvement project’s being “general” to the conclusion that no improvement to a main trafficway can be “local.”
Leawood first contends that the plain language of K.S.A. 12-6a02 supports its using special assessment financing for a main trafficway. It points to the statute’s opening phrase, which provides that special assessment financing is “a complete alternative to all other methods provided by law.” This argument is not further developed. In Giddings v. City of Pittsburg, 197 Kan. 777, 421 P.2d 181 (1966), the court discussed the phrase in the context of a challenge to a benefit district created under K.S.A. 12-6a01 et seq. which did not extend to the midpoint of the block on each side of the street to be improved, as required by 12-601. The court stated:
“In 1957, the Kansas legislature, recognizing the practical problems involved in determining what constitutes a ‘block’ within the meaning of K.S.A. 12-601 in those areas which are platted with artistic design, and realizing the inequities which may result from application of the ‘center-of-the-block’ assessment method, enacted legislation (now K.S.A. 12-6a01-17) embodying new procedures for the construction of street improvements and the assessment of benefits therefor. This Act (Ch. 99, L. 1957) was intended to provide a complete alternative to other methods of determining benefits and levying special assessments to pay for improvements, as the explicit language of K.S.A. 12-6a02 clearly shows. (See, also, article by Albert B. Martin, ‘Survey of Kansas Law: Municipal Corporations,’ 8 Kan. L. Rev. 317, 323.)
“Under the provisions of the 1957 Act, the property which is liable for assessment to pay the cost of street improvements is not that which extends to the middle of the block on each side of the street (which formerly we knew as a ‘benefit district’), but property which lies within an ‘improvement district,’ a term which is defined by K.S.A. 12-6a01 (/) as follows:
“ ‘Improvement district” means an area deemed by the governing body to be benefited by an improvement and subject to special assessment for all or a portion of the cost of the improvement.’ ” 197 Kan. at 781.
Thus, the challenge failed. In Board of Education v. City of Topeka, 214 Kan. 811, 814, 522 P.2d 982 (1974), the court stated:
“The 1957 Act, under the provisions of section 12-6a02 coupled with the definitions set forth in 12-6a01, grants broad authority for undertaking all types of municipal improvements initiated either by petition or by a resolution of the city governing body as to the advisability of the proposed improvement. Obviously, with respect to procedure the Act is intended to be complete within itself. It is declared to be a complete alternative to all other methods provided by law whereby the governing body of any city may undertake any improvements or municipal works.”
Of course, in 1957 when the General Improvement and Assessment Law was enacted, the Main Trafficway Act of 1959 was not yet another method provided by law by which a city could undertake improvements.
The second part of Leawood’s argument centers on the concept of a local improvement. The tenn “local” does not appear in 12-6a02. It is Leawood’s contention that the General Improvement and Assessment Law of Kansas does not limit a city’s use of special assessments to improvements which are primarily of local benefit. Instead, according to Leawood, the Kansas statutes permit it to levy special assessments “upon property in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property by any such municipal work or improvement.” K.S.A. 12-6a02. Davis and Stultz summarize Leawood’s position as: “[E]very street improvement no matter how general in nature does in fact bestow some special benefits on adjoining landowners. The question is merely how much.” They contend that this position ignores the statutory requirement that the improvement “confer a special benefit upon property within a definable area of the city.” (Emphasis added.) K.S.A. 12-6a02. With regard to the benefit-conferred theory of special assessment, Davis and Stultz quote the following statement in 14 McQuillin, Municipal Corporations § 38.02 (3d ed. rev. 1987):
“The foundation of the power to lay a special assessment or a special tax for a local improvement of any character is the benefit which the object of the assessment or tax confers on the owner of the abutting property, or the owners of property in the assessment or special taxation district, which is different from the general benefit which the owners enjoy in common with the other inhabitants or citizens of tire municipal corporation.”
Based on this theory, this court has stated:
“A special assessment, therefore, is in tire nature of a tax levied against property according to the benefits conferred. While the property is made to bear the cost of the improvement, it or its owner suffers no pecuniary loss thereby since, theoretically at least, the property is increased in value by an amount equal to the tax levied against it. (State Highway Commission v. City of Topeka, [193 Kan. 335, 393 P.2d 1008].)
“The whole theory of special assessments is demonstrated by die language found in the early and oft cited case of Norwood v. Baker, 172 U.S. 269, 43 L. Ed. 443, 19 S. Ct. 187:
‘. . . the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. . . Mullins v. City of El Dorado, 200 Kan. 336, 341, 436 P.2d 837 (1968).
Leawood quotes and discusses several opinions from other states’ courts in which an improvement’s generally benefiting a community did not preclude a city’s assessing abutting property which derived some direct benefit from the same improvement. Davis and Stultz chide Leawood for its reliance on cases from other jurisdictions, but they do not cite any Kansas cases in which this particular question was fully adjudicated.
Davis and Stultz cite Madden v. City of Lenexa, 239 Kan. 397, 721 P.2d 261 (1986); Becker v. City of Wichita, 231 Kan. 322, 644 P.2d 436 (1982); Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976); Davies v. City of Lawrence, 218 Kan. 551, 545 P.2d 1115 (1976); Board of Education v. City of Topeka, 214 Kan. 811, 522 P.2d 982 (1974); Snyder Realty Co. v. City of Overland Park, 208 Kan. 273, 492 P.2d 187 (1971); Mullins v. City of El Dorado, 200 Kan. 336; and Giddings v. City of Pittsburg, 197 Kan. 777. The main issue in all these cases is either the composition of an improvement district or the computation of assessments.
In Mullins and Bell, there were secondary issues which are somewhat related to the question in the present case whether the street improvement’s generally benefiting the city precludes financing by special assessment. The Mullins property owners argued that the newly constructed sewer should have been considered a main sewer, in which case much of the cost could have been paid by the city at large under K.S.A. 12-619. 200 Kan. at 347. This court disagreed on the ground that the city’s evidence showed that it “was designed as a lateral system to serve only the property in the districts.” 200 Kan. at 347-48. In Bell, the property owners argued that the costs of intersections with “designated major traffic thoroughfares,” 29th and 37th Streets, should not be charged to the benefit district. The intersections included “extensive median strips and left-hand turn lanes, and all purpose traffic signals.” 220 Kan. at 418. The property owners argued that the city commission passed a binding motion deleting the intersection costs from the benefit district. A review of the proceedings showed that the city commission referred the matter to the Engineering and Finance Departments for reevaluation, that the city answered plaintiff’s declaratory judgment petition by denying it intended to include the intersection costs in the special assessments, that in a special session a motion passed to continue the public hearing for 30 days for further study of the intersection question, and that the “commission never formally terminated the matter of reconsidering the intersections question.” 220 Kan. at 419. The court concluded:
“[T]he admissions and indecisiveness of the city commission, as shown by the circumstances related, considered together with insignificance of the benefits, if any, resulting to local residents from the thoroughfare intersections, we believe, compel the conclusion that the assessment of any part of the costs of the intersections against the benefit district would result in palpable injustice.” 220 Kan. at 419.
In response to the property owners’ further argument that the assessments were grossly disproportionate to any special benefits to their property, the court stated:
“We believe the argument is particularly persuasive with respect to the intersections in question. Where intersections, such as those in question, are de signed, primarily to control the pattern and flow of through traffic into and across the intersections of major thoroughfares, the benefit, if any, to adjacent property is obviously negligible in comparison to the city at large.” 220 Kan. at 419.
Here is the court’s rather cautious statement of its holding:
“Under the particular facts and circumstances surrounding the city’s actions concerning the intersections in question, viewed together with the extreme disproportion of the burden imposed to the benefits received, we hold that the assessment of any costs of the 29th and 37th Streets intersections against the benefit district property is arbitrary and unreasonable and that such assessment must be enjoined.” 220 Kan. at 420.
Leawood cites Posselius v. City of Detroit, 44 F.2d 395 (E. D. Mich. 1930); and In re City of Woodstock, 115 Ill. App. 3d 502, 450 N.E.2d 960 (1983).
In Posselius, owners of abutting properties objected to special assessments for the costs of improving Vemor Highway, which runs entirely across Detroit. The ordinance authorizing the improvement stated that the highway was “to provide to crosstown traffic a direct route whereon crowded downtown streets may be avoided and relieved.” 44 F.2d at 396. One-half the cost “was assessed against the general public and spread upon the general tax rolls,” and the other half was assessed against the properties fronting on the street. 44 F.2d 395. In ruling against the property owners, the district court stated:
“I am unable to agree with the contention of the plaintiffs that, because the primary purpose of this highway project was to provide a through, main thoroughfare across the city, and thus to benefit the general public in such city, it was solely a general improvement, as distinguished from a local improvement, so that entire costs must be defrayed from general taxes and no part of such cost could legally be assessed specially against the land abutting on such highway. The nature of a special assessment is too well understood to require discussion here. It was concisely stated by the Supreme Court in Illinois Central Railroad Co. v. Decatur, 147 U.S. 190, 198, 13 S. Ct. 293, 294, 37 L. Ed. 132, as follows: ‘Special assessments or special taxes proceed upon the theory that, when a local improvement enhances the value of neighboring property, that property should pay for the improvement.’
“It is equally clear that when such an improvement produces a special benefit, other than the benefit received by the general public, to certain land in the vicinity of the improvement, the mere fact that it also results in benefit to the general public, or even the fact that its immediate occasion or purpose was the creation of the general improvement project of which it is a part, does not deprive it of its character as a local improvement nor prevent the imposition of at least a portion of its cost as a special assessment against such land. [Citations omitted.]
“If, therefore, the improvement project here involved did specially benefit the land of die plaintiffs in question, it manifestly constituted a local improvement sufficient to justify the special assessment levied, notwithstanding the fact that it arose from a desire by the people of the defendant city to obtain the general benefits which also flowed from the highway improvement project of which it was, incidentally, a part.” 44 F.2d at 397-98:
Whether the value of the abutting properties was enhanced by the street improvement is a question committed to the discretion of the legislative tribunal, i.e., a city’s governing body, and its decision “will not be disturbed by the courts in the absence of a clear showing that such decision was wholly arbitrary, merely capricious, or actuated by fraud or bad faith.” 44 F.2d at 398.
In Woodstock, 115 Ill. App. 3d at 505, 85% of the costs of improving a street were apportioned to the public and 15% to assessed properties. The project included widening a street and installing new storm sewer, curb, gutter, and sidewalk. It improved the condition of the street and access to the downtown area. One of the issues presented for appeal was whether the improvement was a local one within the meaning of a provision of the Illinois Constitution, which empowers non-home rule units to make local improvements by special assessments. The property owners argued that the improvement was “not a local one in that its primary purpose is to benefit the public and it only incidentally benefits the private properties affected.” 115 Ill. App. 3d at 506. The court disagreed: “[Djespite the conceded benefit to the public, there was sufficient specific private benefit directed to the objectors’ property as distinguished from the municipality as a whole to be derived from the street improvements.” 115 Ill. App. 3d at 508.
The question whether improvements which confer benefits on the public may be financed in part by special assessments based on a special benefit conferred on properties within a definable area was before this court in Garvey Elevators, Inc. v. City of Wichita, 238 Kan. 682, 714 P.2d 956 (1986). In Garvey, a drain project was conceded by the city to be primarily for the benefit of the city at large. Nonetheless, this court rejected the property owners’ argument that, in the circumstances, creation of a benefit district to pay part of the project cost was improper. 238 Kan. at 686-87.
Leawood points out that K.S.A. 12-6a07(a) provides: “The city may pay such portion of the cost of the improvement as the governing body may determine, but not more than ninety-five percent (95%) of the total cost thereof.” According to Leawood, this provision demonstrates that the legislature contemplated that the General Improvement and Assessment Law would be used for improvements with far less than 100% benefit to the assessed land.
We agree with Leawood. We find no support for the district court’s determination that K.S.A. 12-6a01 et seq. is limited to projects which do not predominantly or primarily benefit the city at large. There is no language in 12-6a01 et seq. which supports such limitation. On the contraxy, K.S.A. 12-6a07 provides for special assessments notwithstanding that up to 95% of a project is paid for by city-at-large funds. Financing street improvements under 12-6a01 et seq. is not an all or nothing proposition. Property within an improvement district may be specially assessed for improvements that provide benefits separate from those received by the city at large. Rarely, if ever, will property which abuts a street or. road improvement not be specially benefited to some extent. The existence and to what extent the properties are specially benefited are for the city to determine. That is true notwithstanding that the primary purpose of the project is to benefit the city as a whole. We conclude that the General Improvement and Assessment Law can, in part, be used to finance improvements to a street or road which as been designated as a main trafficway under K.S.A. 12-685.
Another aspect to Leawood’s argument is that “whether a special benefit is actually’ conferred upon a property is not to be determined at summary judgment stage.” Leawood states that the value conferred on property by an improvement is to be used in computing the amount of an assessment under K.S.A. 12-6a08. Leawood seems to suggest it therefore follows that the district court’s deciding, before considering the amount of the assessment, that the primary benefit of the improvement does not fall on the property of Davis and Stultz was premature. Leawood also suggests that the district court judge improperly preempted the City by deciding the question whether and to what extent the properties were benefited. In this regard, this court has stated:
“Ordinarily, the question of the existence and extent of special benefits resulting from a public improvement for which a special assessment is made is a question of fact to be determined by the governing body authorized to act in the premises, and is considered conclusive on the property owners and the courts.” Mullins, 200 Kan. at 342.
In Board of Education, 214 Kan. at 819, the court reiterated: “[T]he questions of the existence and extent of special benefits are questions of fact to be determined by the authorized governing body.” These statements were made in cases where the court’s principal concern was with the city’s valuation for special assessments rather than with whether the improvement conferred special benefit on the properties. In In re City of Woodstock, 115 Ill. App. 2d 502, where the threshold question was whether street improvement conferred special benefit on abutting properties, the Illinois appellate court applied essentially the same rule stated in the Kansas cases:
“It has been established that whether a given improvement is a local improvement within file meaning of the constitution is primarily a matter for determination by the corporate authorities. While whether such an improvement is local or general is a question of law, the question of whether the facts in a particular case bring an improvement within the definition of a local improvement is one of fact to be determined by die circumstances established by the evidence. However, the corporate authority’s determination that a given improvement is a local improvement within the meaning of die constitution is subject to review by the courts. (Johnson v. Village of Bellwood (1930), 388 Ill. 605, 608-09.) The objectors contend that the standard of establishing that a municipality was arbitrary and unreasonable, when challenging a, special assessment, applies to the issue of whetiier an improvement is necessaiy but not to the issue of whether an improvement is local. However, in Illinois Central R.R. Co. v. City of Decatur (1894), 154 Ill. 173, 176, the court found that the power of a city council or board of trustees to declare what shall be local improvements is necessarily implied from the power to make the same in the mode and by the means prescribed in the statute and that a municipality may not declare such an improvement arbitrarily and unreasonably and without reference to benefit. Thus, since deciding when particular circumstances bring an improvement within the definition of a local improvement is a legislative function, as the city urges, that determination wall not be overturned unless arbitrary or unreasonable.” 115 Ill. App. 3d at 507.
In the present case, implied in Leawood’s proceeding under K.S.A. 12-6a01 et seq. is its determination that the State Line Road improvement conferred special benefits which would support special assessments on the Davis and Stultz properties. The district court redetermined this fact question without reference or deference to the City’s legislative authority and entered summary judgment, which would be proper where the only questions presented were questions of law. In these respects, Leawood is correct in contending that the question whether a special benefit actually is conferred on property is not properly determined on a motion for summary judgment.
Finally, Leawood contends that the challenge to the amount of the assessment was premature. Davis and Stultz alleged that Leawood had violated K.S.A. 12-685 et seq.; in Count II, they alleged that Leawood had violated K.S.A. 12-6a02 by creating the improvement district because their “properties are not specially benefited by such improvement.” The prayers are identical in the two counts:
“WHEREFORE, plaintiffs pray the Court grant the following relief:
“(1) Enjoin the defendant City of Leawood, Kansas from (a) entering into any contract or doing any act in regard to the improvement of State Line Road Phase II that is dependent upon the levy of special assessments, and (b) levying any special assessments, taxes or charges against the plaintiffs’ properties for die payment of improvement costs for State Line Road Phase II;
“(2) Order Üiat the resolution of the defendant creating die State Line Road Phase II improvement district be set aside and vacated;
“(3) Order that the State Line Road Phase II improvement costs be paid by the defendant from an at-large source; and
“(4) Grant them such other and further relief as the Court deems just, appropriate, and equitable in the premises, including their costs and expenses incurred herein.”
Davis and Stultz filed a motion for partial summary judgment, seelring an entry of judgment on Count I of their petition. Lea-wood filed a motion for summary judgment. The district court’s journal entry of judgment noted that the motion of Davis and Stultz was for the entry of summary judgment on Count I, and it stated that “plaintiffs’ motion for summary judgment is granted” and that Leawood “is permanently enjoined from proceeding with its improvement district financing plan for State Line Road.” In its brief in this court, Leawood states that the district court’s “ruling necessarily mooted the plaintiffs’ second argument that their properties were not benefited by the improvement.” We agree. The district court’s ruling in plaintiffs’ motion for partial summary judgment necessarily encompassed or mooted Count II of their petition. Thus, the entry of summary judgment was a final judgment on all claims. Reversing the summary judgment and remanding operates to revive Count II.
The district court’s entry of summary judgment is reversed, and the case is remanded with directions to grant judgment to Lea-wood on Count I and for further proceedings on Count II.
Holmes, C.J., and Abbott, J., not participating.
David Prager, C.J. Retired, and Robert H. Miller, C.J. Retired, assigned.
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The opinion of the court was delivered by
Davis, J.:
Artis Swafford appeals a decision of the district court convicting him of felony murder and aggravated robbery. He argues that the district court erred by (1) denying his motion for change of venue, (2) by admitting hearsay statements of codefendant Juan Anthony, (3) by allowing evidence of his commission of prior crimes at the same location, and (4) by imposing consecutive sentences for felony murder and aggravated robbery, thereby violating his right to freedom from double jeopardy. Finding no reversible error, we affirm.
Early in the morning on August 10, 1992, the Mid-America Inn in Salina was robbed and the night clerk, Oliver Bigler, was murdered. Police were called to the scene by Audrey Wright, who arrived at the motel at approximately 4:50 a.m. to open the restaurant, found the door locked, and was unable to summon the night clerk.
Officer Glen Soldán of the Salina Police Department arrived at the motel at 5:30 a.m. Soldán found the motel safe laying in the grass near a white plastic ice bucket and a canvas bag a short distance from the back door. He attempted to enter the motel through the back door, but the deadbolt lock was engaged.
Eventually, the manager of the motel arrived with a key to the motel office. The police found the office area splattered with blood; they discovered Bigler’s body lying in front of the desk. Bigler had sustained severe trauma and lacerations to the head; a letter opener was embedded in Bigler’s neck.
David Klamm, a special agent with the Kansas Bureau of Investigation, searched the office area. He found a broken and bloodstained BB gun along with some pieces of wood that looked as if they had come from the stock of the gun. Kelly Robbins, a KBI forensics examiner, found a blood-stained brick. Officers also found what appeared to be a broken piece of a collapsible antenna. A police dog searched the wooded area east of the motel and discovered a handgun.
An autopsy revealed that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations, including a stab wound in tire right ear canal. In the opinion of Dr. Norman Mácy, death was caused by several severe blows which destroyed the front of the head and tore the brain in half. The head injuries were consistent with those' that could have been caused by a brick or gun stock.
Defendant Artis Swafford was arrested and charged with premeditated murder, felony murder, and aggravated robbery. Three other individuals, Juan Anthony, Joel Butler, and Jennifer Harmon were also charged as a result of the murder and robbery. Anthony, Butler, and Swafford were tried jointly.
On December 16, 1992, a hearing was held concerning several motions filed by the parties.-The State asked that it be allowed to use prior crime evidence pursuant to K.S.A. 60-455 concerning two previous robberies of the motel. The State argued that Swafford had previously made statements linking the defendants to the crimes. The State wished tó use these prior crimes to show identity, plan, and intent. The court ruled that if the State could present foundation evidence linking the crimes, evidence of the prior crimes would be allowed.
All defendants moved for separate trials. Swafford and Butler expressed concern about statements made by Juan Anthony to a confidential informant implicating them in the crime. The court asked the defendants if excising any statements made about Swafford and Butler from the statement would cure the prejudice. The court then took the matter under advisement.
Swafford and codefendants Anthony and Butler filed a motion for change of venue, contending that pretrial publicity created a substantial likelihood that they would not receive a fair trial. In support of the motion, Randall Picking of KSAL radio in Salina was called and testified that his station broadcast a call-in show that dealt with the crime on the day of the defendants’ arrests. Raymond Pollard, vice-president of KSKG radio in Salina, was also called as a witness and stated that his station reported stories on the murder, including the names of the persons arrested. George Pyle, editor of the Salma Journal, testified that he published articles which had detailed the prior convictions of Anthony as well as stories which stated that Anthony’s neighbors were afraid of him because he and his friends carried guns and had all-night parties. Pyle also stated that the Salina Journal printed a story on the trial testimony with a headline stating that Anthony had planned the robbery and murder. Other radio news directors testified that they had run stories on the murder and the suspects.
At the hearing on the motion to change venue, the defendants presented the testimony of Dr. James Franke, the director of the Survey Research Unit at the Kansas State University Institute for Social and Behavioral Research. Dr. Franke testified that he had conducted a public opinion poll to test the public’s knowledge of the case. The results of the survey indicated that out of approximately 366 persons surveyed, 97% had heard of the case and approximately 50% thought that the evidence was strong against all the suspects.
The district court determined that the defendants had failed to show prejudice to such a degree that it would be impossible to obtain an impartial juiy. Accordingly, the court denied the motion.
The court then took up again the motion for severance of defendants. The district court stated that many of the alleged hearsay statements would be admitted under the conspiracy exception to the hearsay rule. The court ordered that any other hearsay statements regarding Swafford and Butler should be redacted. Accordingly, the court denied the motion to sever.
The trial commenced as scheduled on February 16, 1993. The State called Marilyn Jensen, who testified that she was traveling through Salina in the early morning hours of August 10, that she stopped at the Mid-America Inn around 1:00 or 2:00 a.m., and that an older gentleman, presumably Bigler, told her there were no vacancies and directed her to the Ramada Inn. The desk clerk at the Best Western Heart of America Inn, another motel in Salina, testified that the last contact she had with Bigler was at 2:00 a.m.
Officer Randy Jennings of the Salina Police Department testified that he had stopped Anthony at approximately 2:38 a.m. for running a red light. According to Jennings, Anthony drove off heading north after receiving a traffic warning. Earlier that evening, Jen nings had arrested Orvin Mixon for driving while suspended. Swafford was a passenger in the car and was allowed to drive Mixon’s auto away.
Don Dean, general manager of the Mid-America Inn, testified that there were only two keys to the back door, one of which was kept at the office. He identified the safe found outside the door as the one that was kept in the office and the place where all the business proceeds and receipts were kept. He identified the white bag found outside as the bank bag where the small bills were kept.
Robert Taylor, a desk clerk at the Mid-America Inn, stated that in order to open the cash register, the button marked “room number” must be depressed. There had been two previous robberies of the motel that summer, and everyone who worked there thought it was an “inside job” because during the second robbery the robber knew how to open the cash register.
Lieutenant Kiltz, along with other officers from the Salina Police Department, executed a search warrant for the home of Anthony and his mother. Kiltz found a .38 revolver inside Anthony’s bedroom. Officer Mike Briggs found a battery-operated walkie-talkie with a broken antenna inside an empty dog food bag. The antenna piece found at the crime scene matched the piece of the antenna found in Anthony’s trash can. Sergeant Sweeney found another walkie-talkie, a $10 roll of quarters, and a Tec 9 handgun.
The State called Kit Phifer, who testified that she knew the defendants and that on August 9 she was with friends Karen Renee Greer, Sunshine Daniels, and Stephanie Neustrom. According to Phifer, the other girls took her home early that evening. The next morning she called Greer. Phifer asked Greer if she knew about the robbery, and Greer indicated that she did. Later, Greer told Phifer that Anthony had showed her a key to the motel office.
Daniels testified that she had known the defendants for about a year but that the night of August 9 was the first time that Greer had met Anthony. According to Daniels, after the group had dropped Phifer off, they went to Anthony’s house. Daniels testified that Greer told her the next day that she and Anthony had gone to a barbecue at Orvin Mixon’s house the night of the crime. However, Daniels said that Greer later told her that Anthony had planned the murder and told her about it. Daniels also testified that Greer told her that she had sex with Anthony that night.
At this point, the attorneys for defendants Swafford and Butler objected on the ground that anything Greer told any of the girls as to what Anthony told her was hearsay and inadmissible. Earlier, they had made the same objection when Phifer was testifying, although no hearsay information had actually been elicited. The district court had overruled the previous objection on the ground that any statements would be subject to the conspiracy exception. The court again made the same ruling.
Krista Young then testified that in August 1992 she lived with Orvin Mixon. On August 9-10, they had a barbecue. According to Young, Swafford and Butler had been at the barbecue most of the evening. She testified that she went to bed around 3:00 or 4:00 a.m. and did not see Anthony at the barbecue. Immediately afterward, however, she testified that she had seen Anthony at the barbecue, but she had not seen Anthony, Swafford, and Butler leave together.
Stephanie Neustrom testified on behalf of the State that she had a sexual relationship with Joel Butler. A few days after the crime, Neustrom talked with Greer, who told her that Anthony had left the house in the middle of the night to rob the Mid-America Inn.
Once again, the defendants’ attorneys made hearsay objections, which were overruled. Neustrom went on to relate that Greer told her Anthony had planned to rob the motel and injure the clerk. Greer also told Neustrom that she helped him count money when he returned. Neustrom asked Greer if Butler was involved, and Greer told her that Butler did not know what was going to happen when he got into the car with Anthony and waited outside.
At this point, Butler’s attorney lodged a hearsay objection, which was overruled. Neustrom then testified that Greer told her Swafford and Anthony were supposed to hit the clerk but that when the clerk did not go down, Swafford went back outside.
The trial court overruled hearsay objections on the basis of the conspiracy exception to the hearsay rule. N'eustrom was permitted over objection to relate that Greer told her Anthony had planned to rob the motel and injure the clerk and that Greer helped Anthony count money when he returned.
Greer was called as a witness for the State. She stated that after taking Daniels and Neustrom home, she and Anthony went back to his house and had sex. Sometime after 2:30 a.m., Anthony told her that he, Butler, and Swafford were going to rob a motel and kill the night clerk by shoving a sharp object down his throat. Anthony showed her the key they were going to use to get into the motel. Before Anthony left she saw some walkie-talkies, and Anthony showed her a sharp object which looked like a nail file. However, she testified that the object was not the letter opener found in Biglers body.
According to Greer, Anthony returned later and told him that he had been at Mixon’s house. However, he was carrying some money, and Greer helped him count it. Greer also testified that at one time she considered herself engaged to Anthony and that she had previously lied to police and given alibi testimony for him.
Ramona Keil was a night clerk at the Mid-America Inn. She had been on duty during the two previous robberies at the motel. She stated that on May 31, 1992, a man entered that motel, asked for a room, and then hit her on the head when she turned to look at the clock, and continued to hit her until she passed out. Eventually, she was thrown into the restroom, and she heard someone hitting the cash register keys. The person was unable to open the register, and nothing was taken.
Keil testified that on July 7 the front and back doors of the motel were locked. She was watching TV in a room next to the office when she heard glass break. When she went out into the lobby she saw the man from the first robbery, who proceeded to hit her with a black club. She was then kicked and thrown into the restroom. This time the assailant was able to open the cash register. Keil identified the defendant Swafford at trial as the person who committed the crimes, although she had previously been unable to identify him.
Jennifer Harmon testified and admitted that she had been charged in the murder and robbery and had agreed to testify in exchange for the State’s agreement to drop the murder charge. Harmon stated that she was 17 at the time of the murder and had known Anthony since she was 11 years old. She testified that Anthony had previously worked at the restaurant at the Mid-America Inn, which was owned by Harmon’s grandparents. Harmon stated that she returned to Salina in 1991 after living in Topeka for some time, that she reestablished contact with Anthony, and that they began a sexual relationship in the winter of 1991. Harmon began working the 3-11 p.m. shift at the motel in April 1992.
After the first attempted robbery of the motel, Harmon went to Anthony’s home and Swafford was there. As Swafford left, he asked Harmon “how the bitch was.” Harmon testified that Anthony later told her that Swafford had gone into the motel and hit Ramona Keil on the head. Anthony stated that they had been unable to get into the cash register. Harmon told Anthony that the “room number” button had to be used to open the cash register.
Harmon stated that at one time she gave Anthony and Butler a ride to Junction City. On the trip, Anthony asked her to get him a copy of the keys to the motel. Butler also encouraged her to get the key for Anthony. Eventually, she agreed to leave the key where Anthony could pick it up and copy it.
After the second robbery at die motel, Harmon again went to Anthony’s house. Anthony was outside with Swafford, and Swafford again asked her “how the bitch was.” Later that summer, she was in Anthony’s room when she noticed some walkie-talkies. Harmon testified that Anthony asked her if she would let him rob the motel while she was on duty so that he would not have to split the money with Swafford and Buder. Butler’s attorney objected on the grounds of hearsay, but the objection was overruled. Harmon refused to agree to be robbed.
Hannon testified that she became scared of Anthony and wanted out of the relationship. She stated that she gave Anthony money and clothes so that he would stay out of trouble. According to Harmon, Anthony was blackmailing her with a videotape of them having sex, which he threatened to expose.
Harmon stated that when she heard about the robbery and murder, she suspected Anthony. She went to Anthony’s house and found him sleeping; when she asked how he could sleep after what he had done, defendant Anthony told her that he had “no conscience.”
Detective Gerald Shaft of the Salina Police Department testified that as part of a drug sting operation the department had rented two apartments in a building in Salina. Shaft and another officer occupied one apartment, and Lamar Williams, a confidential informant, occupied the other. Williams’ apartment was wired with videotape and sound so that the officers in the other apartment could monitor drug transactions.
At this point, the State sought to question Shaft as to certain statements Williams had made to him regarding information Anthony had given to Williams. Butler’s attorney objected on the grounds of hearsay. The district court overruled the objection, citing the conspiracy exception to hearsay. Both Butler’s and Swafford’s attorneys lodged a continuing objection to the testimony.
Shaft testified that Williams told him he had talked to Anthony prior to the crime and that Anthony had asked him to participate in a robbery and murder at a motel. Shaft also testified that following the crime Anthony went to Williams’ apartment to sell drugs. In a conversation that was both videotaped and audiotaped, Anthony told Williams about the crime and demonstrated how the murder had been committed.
Shaft also testified that he had interviewed Anthony after Anthony’s arrest. At first, Anthony denied any involvement. After being told of the existence of the tapes, Anthony became visibly upset, unable to believe that Williams was working for the police. When another officer asked Anthony why he would commit such a crime, Anthony stated, “Because it was peer pressure.” According to Shaft, Anthony also stated, “I’m going to get the Hard 40 for this.”
Lamar Williams then testified. Williams stated that during the time the crime was committed he was working on drug buys for the police and knew all three defendants. According to Williams, Anthony told him he was going to rob the motel, Swafford was going to knock out the clerk, and Anthony was going to slit the clerk’s throat.
Williams testified that the night after the robbery and murder occurred, Anthony came to his apartment to sell drugs. While there, Anthony talked about the crime. Williams stated that Anthony had also talked about the previous robberies at the motel. Anthony had told Williams that he had a girl that would do anything for him and that the girl made him a key to the motel. Anthony said that in the previous robberies, Swafford had gone into the motel and knocked out the clerk, Butler had been the lookout man outside, and Anthony had been the brains behind the operation.
Williams also testified that he had talked to Swafford about the murder of Bigler. All Swafford said was, “He was old, he was going to die anyway.” When Williams told Swafford that Anthony had told him all about the murder, Swafford said, “Juan talked too much.” Swafford also stated, “Man, we went up to that motherfucker and — and the dude wouldn’t give up so we had to fuck him up, man.”
Mike Marshall, a sergeant with the Salina Police Department, testified that he was in the upstairs apartment while Anthony was describing the crime to Williams in the downstairs apartment. He identified the videotape and audiotape as the tapes made that night. The videotape and audiotape were played for the jury. They are not a part of the record on appeal.
Kelly Robbins, a KBI forensics examiner, also testified on behalf of the State. She stated that she found blood on the .seats of the Geo Metro owned by Anthony’s mother. There was also blood present on a T-shirt, a sock, and a pair of sweatpants found at Anthony’s residence. According to Robbins, the blood on the sweatpants was consistent with Bigler’s blood and could not have come from either Anthony or Swafford.
Chad Johnson, a worker at Aleo, also testified on behalf of the State. Johnson testified that during the summer of 1992 he had copied a key for Butler.
Swafford presented an alibi defense. Kenneth Green testified that he had been at Mixon’s party, left for a while, and then came back around 1:00 a.m. According to Green, he, Butler, and Swafford left to buy cigarettes soon after, drove by Benton’s Cafe, and then went back to the party where they all remained for the rest of the evening. Trish Wilson, Swafford’s girlfriend, testified that Swafford left the barbecue once to get ice with Mixon and later left with Green and Butler to buy cigarettes.
Swafford himself also testified. He stated that he went to the barbecue with Wilson and then left and went to Williams’ house around 11:00 or 12:00. He went back to the barbecue and then left to get ice with Mixon. Following their run-in with police, he had to bail Mixon out of jail. Finally, around 4:00 a.m., he left with Green and Butler to get cigarettes. After his return, he did not leave the barbecue for the rest of the night.
Swafford testified that he did not care much for Anthony because Anthony was a bragger and a liar. He also testified that he and Lamar Williams were associates but not friends and that they had recently had a fight over a girl. Swafford maintained that Williams had lied about Swafford’s statements concerning the robbery.
During deliberations, the jury sent a question to the judge concerning the redacted transcript of the videotape. The jury asked, “If we have established that defendant Swafford and Butier were there, can we use this as evidence?” The agreed-upon answer given to the jury by the trial court was that the statement could not be used as evidence against Swafford and Butler.
Swafford was convicted of felony murder and aggravated robbery. He was sentenced to a term of life for the felony murder and a term of 15 years to life for the aggravated robbery, to run consecutively.
CHANGE OF VENUE
Swafford contends that the district court erred in denying his motion for change of venue because the pretrial publicity created so great a prejudice that he could not obtain a fair and impartial trial in Saline County. K.S.A. 22-2616(1) provides that the court shall, upon motion of the defendant, transfer the case to another county if it is satisfied that there is so great a prejudice against the defendant that he or she cannot obtain a. fair and impartial trial.
The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992). The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial. 252 Kan. at 57.
As a threshold question, the State claims that Swafford waived the change of venue issue by failing to renew the motion at the conclusion of jury selection. In support of this contention, the State cites State v. Bierman, 248 Kan. 80, 88, 805 P.2d 25 (1991, and State v. Richard, 235 Kan. 355, 365, 681 P.2d 612 (1984). Neither of these cases stand for the proposition that a defendant must renew the motion immediately following voir dire or see the objection waived. Rather, each of these cases notes that the defendants chose not to renew their requests at any time after the completion of voir dire, indicating that nothing new had arisen during voir dire that would show problems with finding an impartial jury. See State v. Bierman, 248 Kan. at 88; State v. Richard, 235 Kan. at 365. Swafford’s attorney renewed his request for change of venue the next day. We find no merit in the State’s argument that the motion for change of venue was waived.
Swafford argues that the nature of the pretrial publicity created overwhelming prejudice. It is true that the crime and the arrest of the defendants were highly publicized. However, media publicity alone has never established prejudice per se. State v. Grissom, 251 Kan. 851, 927, 840 P.2d 1142 (1992). The burden is on the defendant to show that the publicity has reached the community to such a degree that it is impossible to get an impartial jury. 251 Kan. at 927.
Swafford presented a survey conducted by the Kansas State University Institute for Social and Behavioral Research in support of his motion. The survey consisted of an interview with 366 persons in the Salina area. It revealed that 97.5% of those surveyed had heard about the case and the suspects, and 49% of those surveyed felt that the evidence was strong against all four suspects, 15.8% of those surveyed felt that the evidence was strong against some suspects and weak against others, and 49% of those persons felt the evidence was strong against Swafford. Thus, 57.1% of the total surveyed felt the evidence was strong against Swafford. Of those surveyed, 18% felt that they could not be impartial if asked to serve on a jury, 9.3% felt it was unlikely they could be impartial, 24.3% felt that it was likely that they could be impartial, 29.9% felt that it was very likely that they could be impartial, and 18.6% had no opinion.
There were motions made by all defendants regarding individual voir dire. However, the district court denied the motions and determined instead that problems could be avoided by summoning different panels at different times to prevent contamination of the jury pool at large. Six separate panels of prospective jurors were summoned and questioned by the court and counsel. In denying the motion for individual voir dire, the court offered to revisit the motion if a problem occurred when picking a jury.
The record reveals that each of the defendants’ counsel asked questions regarding pretrial publicity, including whether the jurors had formed an opinion and in the case of Anthony’s attorney, whether that opinion was strong against one or all three defendants. Of the first panel of 18 jurors, 5 jurors indicated that pretrial publicity had led them to form an opinion, and they were dismissed for cause. The judge also asked questions of the jury regarding pretrial publicity at juror orientation. In the second panel, Swafford’s attorney asked for a show of hands from those people who felt Swafford was guilty. The two persons who said yes were dismissed for cause. All attorneys asked questions of the third panel concerning publicity. From tire third panel, five persons said they had been affected by the pretrial publicity but only two of those five were asked to be stricken by the defense attorneys. Those two were stricken for cause.
On the fourth panel of 25 jurors, 12 felt that they knew a great deal about the case and had at least started to form their own opinions. Of those 12,10 were asked to be stricken for cáuse. Seven of those were stricken but three who claimed that they would try to be impartial were left on. Both the judge and the attorneys asked questions about publicity. Of the fifth panel of 24, only 2 stated that they might have formed an opinion, and both stated that they could set that aside and be impartial. However, one was dismissed for cause. On the last panel of 25, only 2 expressed an opinion of the case, and they were dismissed for cause.
The court qualified 90 of the jurors for use on the jury panel. Each defendant then received 12 peremptory strikes, and die State received 36 strikes. The defense struck the three persons challenged for cause on the third panel that had not been stricken for cause.
On the whole, the court questioned only 125 jurors to arrive at a jury pool of 90. The record discloses that the attorneys had few, if any, problems in questioning jury members about the effects of publicity. All but three of the challenges for cause because of pretrial publicity were granted, and the remaining three challenged venirepersons were taken off by peremptory strikes. The whole selection process lasted two days. Although jury selection was drawn out due to the district court's precautions, it was not inordinately difficult to pass a pool of jurors for cause. No objections were made about the process following the selection.
We hold that the court did not abuse its discretion in denying Swafford's motion for change of venue. In concluding our discussion of this contention, the following quote from State v. Ruebke, 240 Kan. 493, 500-01, 731 P. 2d 842, cert. denied 483 U.S. 1024 (1987) is appropriate:
“Media publicity alone has never established prejudice per se. The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. The small number of jurors dismissed by the court for cause and the effort of the judge to press no one into jury service who showed the slightest hint of prejudice established that there was no abuse of discretion in denying a change of venue. Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice. There was no abuse of discretion on the part of the court in denying the defendant’s motion for change of venue.”
ADMISSION OF HEARSAY STATEMENTS
Swafford contends that the district court erred in admitting statements made by Anthony to others. He argues that because Anthony was a codefendant and did not testify, his statements were inadmissible hearsay. Prejudice, he claims, is established because there is little evidence to connect him to the murder and robbery.
The Confrontation Clause of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right of a criminal defendant to be confronted with the witnesses against the defendant, including the right to cross-examine those witnesses. Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). An accused’s right of confrontation is violated when the confession of a codefendant implicating the accused is received in evidence in a joint trial. Bruton v. United States, 391 U.S. 123,137, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).
Swafford first complains of the admission of the excised videotape of Anthony’s statements to Lamar Williams. He argues that even though his name is edited from the videotape, the tape still clearly implicates him in the crime. The State, on the other hand, argues that because Swafford did not object to the playing of the tape, he has waived consideration of this issue.
It is important to note that the statements made by Anthony to Williams on the tape would not be admissible under the coconspirator exception to hearsay as they were made the night after the robbery, which was after the conclusion of the conspiracy. The district court recognized this and ordered that the tape be redacted.
Whether editing a confession or statement by excision will avoid a violation of the Bruton rule must be determined on a case-by-case basis. State v. Hutchinson, 228 Kan. 279, 282, 615 P.2d 138 (1980). Editing may be proper when any suggestion of the codefendants’ involvement in tire crime charged can be eliminated from the confession or statement, but generally an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant. 228 Kan. at 282. If an edited statement of a codefendant is clearly inculpatory as to the defendant and vitally important to the prosecution’s case against the defendant, it should not be admitted. State v. Rakestraw, 255 Kan. 35, Syl. ¶ ¶ 1, 2, 871 P.2d 1274 (1994); Hutchinson, 228 Kan. at 282.
In this case, however, we are unable to determine whether the excised statement explicitly suggested the participation of Swafford because neither the excised version of the tape nor the excised transcript of the tape is included in the record on appeal. “An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, a reviewing court presumes that the action of the trial court was proper.” State v. Richard, 252 Kan. 872, 874, 850 P.2d 844 (1993).
At trial, Swafford made no objection to the admission of the excised audiotape and videotape, and the jury was specifically instructed not to consider Anthony’s statement against Swafford. While Swafford did object to the transcript of the excised tape, it was only because he feit that the original tape was unclear in some areas and doubted the accuracy of the transcript. “The erroneous admission of evidence may not be raised as an issue on appeal unless there appears of record a timely objection so stated as to make clear the specific ground of the objection.” State v. Wilson, 247 Kan. 87, 98, 795 P.2d 336 (1990).
Swafford also argues that the district court erred in admitting statements made by Anthony to Jennifer Harmon and Karen Renee Greer, as well as the testimony by Sunshine Daniels, Kit Phifer, and Stephanie Neustrom relating those comments, under the co-conspirator exception to the hearsay rule. Swafford, relying on the case of State v. Schultz, 252 Kan. 819, 842-44, 850 P.2d 818 (1993), argues that even if the provisions of the exception exist, there must also be evidence independent of the hearsay statements themselves which establishes a substantial factual basis for the existence of a conspiracy; Swafford claims no such evidence exists.
K.S.A. 60-460(i)(2) provides an exception to hearsay for those statements
“which would be admissible if made by the declarant at a hearing if . . . the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
In order to show a conspiracy, it is not necessary that there be any formal agreement manifested by formal words written or spo ken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances. State v. Sherry, 233 Kan. 920, 934, 667 P.2d 367 (1983). Although a close question, we believe that the statements made by Swafford to the confidential informant, Lamar Williams, indicate that he participated in the robbery and murder. Furthermore, the antenna of the walkie-talkie found at the scene indicates that some planning went into the crime. Testimony by Ramona Keil identifying Swafford as the person who committed the two previous robberies, together with evidence of the manner in which the two prior robberies took place, shows planning between Anthony and Swafford for the present robbery. In the first robbery, the robber was unable to gain entrance to the cash register; however, after Harmon told Anthony how to work the register, the robber was able to gain access to the money during the second robbery. All of these facts provide independent circumstantial evidence that a conspiracy between Swafford and Anthony to burglarize the motel existed, and we are satisfied that the hearsay statements related to and were made during the course of the conspiracy.
Swafford also argues that there was no showing of a particularized guarantee of trustworthiness regarding the statements as required by State v. Myers, 229 Kan. 168, 172, 625 P.2d 1111 (1981). In Myers, this court found that hearsay evidence may be admissible if the declarant is shown to be unavailable and there is an indicia of reliability so as to afford the trier of fact a satisfactoiy basis for evaluating the truth of the statement. 229 Kan. at 172. However, Myers also quotes Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), for the proposition that reliability can be inferred, without more, in a case where the evidence falls within a firmly rooted hearsay exception. In this case, the hearsay testimony falls within the coconspirator exception, a firmly rooted hearsay exception.
EVIDENCE OF PRIOR CRIMES COMMITTED AT THE SAME LOCATION
Swafford contends that the court erred in allowing evidence of the prior commission of robberies at the motel to be admitted. He argues that there was insufficient evidence to show that he committed the previous crimes.
K.S.A. 60-455 states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
A ruling on the admissibility of prior crimes evidence pursuant to K.S.A. 60-455 is within the discretion of the trial judge. State v. Searles, 246 Kan. 567, 579, 793 P.2d 724 (1990).
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
In determining whether to admit evidence of a prior crime, the trial court must determine it is relevant to prove one of the facts specified in the statute, determine the fact is a disputed material fact, and balance the probative value of the prior crime evidence against its tendency to prejudice the jury. State v. Blackmore, 249 Kan. 668, 671, 822 P.2d 49 (1991).
In this case, the evidence of the prior robberies was clearly relevant to prove identity, intent, and plan. All of these facts were materially disputed. The only question is whether the probative value of the evidence outweighed its tendency to prejudice the jury. Swafford contends that because his identity as the culprit in the prior crimes was in question, the evidence was more prejudicial than probative.
Prior to trial, Ramona Keil was not able to identify Swafford as her assailant in the two prior robberies at the motel. However, she was able to identify him as her assailant in the two prior robberies when she took the stand to testify. Her identification, combined with Jennifer Hannons testimony about statements made to her by Swafford on the days after the two previous robberies, raises an inference that Swafford committed the previous offenses. Under these circumstances, we conclude, as did the trial court, that the probative value outweighed any prejudice to the defendant.
Swafford contends that his sentences for felony murder and the underlying crime of aggravated robbery constitute double jeopardy. He argues that to be sentenced both for felony murder and for the underlying felony results in multiple punishments for the same offense.
This exact issue has been addressed by this court. In State v. Dunn, 243 Kan. 414, 433, 758 P.2d 718 (1988), we determined that conviction and sentencing for both felony murder and the underlying offense does not constitute double jeopardy. We reached the same result in State v. Gonzales, 245 Kan. 691, 707, 783 P.2d 1239 (1989), and State v. Bailey, 247 Kan. 330, 340, 799 P.2d 977 (1990), cert. denied 114 L. Ed. 2d 108 (1991).
Swafford acknowledges our decisions in these cases but asks us to look anew at the situation. He argues that because the underlying felony is used to convict the defendant of first-degree murder, then all underlying felonies are lesser included offenses of felony murder. We find his argument unpersuasive and adhere to our decisions in Dunn, Gonzales, and Bailey.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Troy John Arteaga, from his convictions for first-degree felony murder and attempted aggravated robbery. Defendant was sentenced to a controlling sentence of life imprisonment. Defendant raises five issues on appeal having to do with peremptory challenges (Batson issue), juror misconduct, a gruesome photograph (autopsy photo), failure to give a requested instruction (voluntary manslaughter), and exclusion of evidence of a witness’violent character.
The facts necessary to decide the various issues will be developed as the issues are discussed. An overview of the events leading up to Jerry Anderson’s death is of help in a general understanding of the issues.
David Culbertson and Jerry Anderson spent the afternoon of June 18,1993, working together and then took their families to the Grain Bin for dinner. Throughout the course of the afternoon and evening, Culbertson and Anderson each consumed at least three to five beers and one mai tai. After arriving home from the Grain Bin around 6:00 p.m., Culbertson walked to Anderson’s nearby house, and the two left in Anderson’s wife’s car to get some beer.
That same day, the defendant, Troy Arteaga, spent the afternoon driving around with Robert Flores in Arteaga’s car. Arteaga testified he had with him two bags of marijuana — one bag with 2-3 joints in it and one bag containing Vz oz. of marijuana. He testified that Flores had his own bag of marijuana. According to Arteaga, they smoked two joints of marijuana. They picked up Flores’ cousin Ruben Valdez-Hemandez (Valdez), and Flores and Valdez shared a joint; Arteaga may have joined them. After picking up two of his wife’s children, ages 4 and 7, at the pool, Arteaga continued driving around with Flores and Valdez. Arteaga went to the liquor store and bought two quarts of Old English malt liquor, one for himself and one for Flores. There may have been two trips to the liquor store and a total of four quarts of Old English purchased for Flores and Arteaga.
The paths of Culbertson and Anderson and Arteaga, Flores, and Valdez crossed shortly after 6:00 p.m. on Alfalfa Street, an alleyway. Anderson and Culbertson were in Anderson’s vehicle, with Anderson driving. Arteaga was driving his car with Flores in the front passenger seat, Valdez in the back passenger seat, and Arteaga’s wife’s sons in the back seat. Ultimately, Anderson received a fatal wound caused by a knife held by Arteaga.
There are four versions of how the wound was inflicted. Basically, it boiled down to whether the jury believed Jerry Anderson was killed by Arteaga during an attempted aggravated robbery, in self-defense, or by accident.
The State, on appeal, is. entitled to the most favorable version supported by the evidence. That version is that Culbertson and Anderson were attempting to buy marijuana from Arteaga. Arteaga said that Culbertson and Anderson had money and he was going to “roll” them. Arteaga got out of his car, taking a large knife with him, and went to the Anderson vehicle. Arteaga and Culbertson exited the Anderson car, and Arteaga attempted to take Culbertson’s money. A knife was used in a struggle with Culbertson, and when Anderson came to Culbertson’s assistance Arteaga stabbed Anderson, resulting in his death.
Arteaga insisted that he did not intend to rob them or stab Anderson. He testified that the stabbing occurred after Culbertson told Anderson to drive off with Arteaga’s marijuana. He admitted that neither Culbertson nor Anderson were armed.
Anderson was pronounced dead shortly after being transported by ambulance to the hospital. He had a large, gaping stab wound to the front left side of his chest. Anderson bled to death from the stab wound to the heart, complicated by a collapsed lung.
Flores testified that after the stabbing, Arteaga returned to the car and told Flores that Flores had not seen anything and that if Flores said anything, the same thing would happen to him. Valdez testified that Arteaga later made a similar threat to him about Valdez not having seen anything. Arteaga denied making these threats. Arteaga then went to Emilio Hernandez’s house, where he got his head shaved.
The next day, Arteaga, his wife, and her three children drove to her parents’ home in Oklahoma. Arteaga was arrested in Oklahoma three days later.
I. STATE’S USE OF PEREMPTORY CHALLENGES
The defendant’s first claim of error concerns the State’s use of peremptory challenges to exclude Hispanic venirepersons. He argues that the State’s exclusion of 5 of 6 Hispanic venirepersons was discriminatory and violates Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
In Batson, the United States Supreme Court held that the striking of black venirepersons based on racial grounds or the belief that black jurors will be partial to a black defendant violates the Equal Protection Clause of the United States Constitution. 476 U.S. at 89. The Court outlined a three-part test in Batson and in its subsequent decision in Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991). This court restated the test in State v. Poole, 252 Kan. 108, Syl. ¶ 1, 843 P.2d 689 (1992):
“A three-step analysis is used to determine if the State’s use of peremptory strikes violates the Equal Protection Clause. First, the defendant must make a prima facie showing that die prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whedier the defendant has carried Iris burden of proving purposeful discrimination.”
This court’s standard of review of a trial court’s ruling that the State did or did not act with a discriminatory purpose in exercising a peremptory challenge is abuse of discretion. State v. Walston, 256 Kan. 372, Syl. ¶ 1, 886 P.2d 349 (1994).
The trial court here qualified 36 jurors and 6 alternate jurors. In seating the jury, each party had 12 peremptory challenges of jurors and 2 peremptory challenges of alternate jurors. Of the 36 jurors qualified, 6 were Hispanic or had Hispanic surnames. Five of these 6 were excused by the State’s use of peremptory challenges. The trial court ruled that based on the Hispanic surnames, the defen dant had made a prima facie showing of discriminatory purpose and required the State to present race-neutral reasons for exercising its peremptory challenges on those jurors. The following reasons were expounded for striking the jurors:
1. P.G.
He was the ex-husband of a law enforcement officer. He may have answered a question on voir dire untruthfully concerning his marital status. He knew a defense witness as well as two witnesses for the State. When asked if his association with tiróse witnesses would cause him concern, his response was, “I would hope not” and he resisted explaining what he meant by “I would hope not.” He also indicated that he would hate to be judged. He indicated that he thought tire trial would be a one-day trial (it was expected to last PA weeks) and that longer tiran one day would be difficult for him.
2. R.G.
The main reason for the strike was that when the State asked the venire panel whether any of them believed that the police could make a mistake, he immediately and very affirmatively started nodding his head. He also indicated he might be distantly related to Robert Flores, a key prosecution witness.
3. L.M.
She has a son and brother in law enforcement. She knew Arteaga’s family through her employment at SRS.
4. R.R.C.
Although she had a Hispanic surname, she did not appear to be Hispanic. The State indicated it was unaware that she was Hispanic. The prosecutor knew her from his prior legal representation of her. She had prior jury service in Edwards County. The prosecutor did not feel she was a juror he would want to have on the jury. He did not think she would be attentive. The defense admitted there was no reason to believe she was Hispanic other than her surname. The prosecutor added that he considered R.R.C. to be a personal friend. The strike was not racially motivated. It was because of problems she had, including the fact that she was separated from her husband.
5. T.P.
She was very young (23 years old) and was a close friend of the brother of Ruben Valdez, a key prosecution witness. She knew the witness through his brother. The State indicated it desired to keep as many people with personal associations with any witnesses off the jury.
The trial court noted:
“I’m going to find at this time based upon the statements of counsel together with the Court’s recollection of the questions asked by respective counsel in their portion of the voir dire in this matter that there hasn’t been shown to the satis faction of the Court at this time that the 5 of the 12 strikes even though they may be persons bearing Hispanic names or being Hispanic appearance in nature shows that tire State knowingly struck those persons because of their ethnic background or their heritage, and so therefore would find at this time that there has been no showing that they were not racially or ethnically neutral strikes. The defendant’s motion challenging the panel is denied.”
The defendant later renewed his objection under Batson. Defense counsel indicated that of the 12 jurors seated, 4 of them knew witnesses. R.R. knew Peggy Sebastian, a witness listed by the State (but who did not testify). J.L. formerly employed David Culbertson, a victim and key prosecution witness. B.D. worked for Patricia Lemons, a defense witness who testified concerning the amount of alcohol in drinks at the Grain Bin. M.L.N. was familiar with all of the prosecution witnesses from St. Catherine Hospital, which is where Anderson was transported and pronounced dead.
The State responded that it did not intend to call Peggy Sebastian, that Patricia Lemons is a defens.e witness, and that it did not recall J.L. had employed Culbertson. The court distinguished Bat-son because the jurors excused there knew nothing about the case and knew none of the witnesses. The court opined that Batson does not stand for the idea that the State cannot strike a juror who knows some of the witnesses being called because the juror is Hispanip.
“Now, I agree with you if none of these [prospective jurors] knew any of the witnesses to be called your motion would have been granted instanter; b,ut to turn around and compare die fact that because he didn’t strike every Anglo who knew some of the witnesses — because some of the Anglos that he did strike, diey did know witnesses. And so in diis particular regard or interest I firmly believe that that’s not what Batson stands for and that’s not what Hood stands for. And in this instance, there has to be a showing of out and out racial bias on die part of the prosecution; that hasn’t been shown.
The defendant’s renewed motion for a mistrial was denied.
After presentation of the State’s case, the defendant again renewed his motion for a mistrial. The court adopted its previous findings and conclusions, and denied the motion.
The defendant argues on appeal that the reasons given by the State were not race neutral. He asserts that the primary reasons given by the State were that the prospective jurors knew witnesses (P.G., L.M., and T.P.), had prior jury service (R.R.C.), and dem onstrated certain body language (R.G.). The defendant contends that these reasons fail because the characteristics of knowing witnesses and prior jury service were present in several jurors seated.
The defendant argues that seven jurors seated knew witnesses, just as P.G., L.M., and T.P. did:
B.D.: She knew two defense witnesses from her employment at the Grain Bin. She was also acquainted by sight with the Culbertson family.
R.F.: He knew Cliff Culbertson. (Cliff Culbertson was not mentioned by file court as a prospective witness. We assume Cliff is related somehow to David Culbertson but are not sure how.)
T.H.: He knew Duane Geier, a defense witness. He also knew the defendant’s father.
M.J.: He knew Robert Gonzales, a prosecution witness. Gonzales was a law enforcement officer involved in the investigation. (This juror is Hispanic and was the only Hispanic left on the jury.)
J.L.: He formerly employed David Culbertson.
M.L.N.: She knew prosecution witnesses who worked at St. Catherine Hospital. These witnesses were medical witnesses who treated Jerry Anderson, pronounced his death, and performed the autopsy.
R.R.: He knew Peggy Sebastian, listed as a prosecution witness. She did not testify.
Additionally, the defendant points out that juror C.E.’s daughter was employed by the prosecutor. The defendant also argues that three jurors seated had prior jury experience, just as R.R.C. did.
The defendant cites State v. Belnavis, 246 Kan. 309, Syl. ¶ 2, 787 P.2d 1172 (1990), where this court stated: “Where a prosecutor’s explanation for peremptory challenges relies on characteristics of persons struck and those same characteristics are present in individuals not challenged, the explanation is not race neutral.” In Belnavis, the State gave as a race-neutral reason for striking a black venireperson the fact that she was a detail worker with photography. The State was aware there would be some inconsistencies ■with the testimony of one of its witnesses and thought, because of the venireperson’s work with details, she might focus on the inconsistencies. While under other circumstances this could have been a race-neutral reason, under the facts it was not because the State did not strike several white jurors who worked with details. 246 Kan. at 312-13. The State struck another black venireperson claiming that she was a young, single mother with a 7-month-old baby; therefore, she might be distracted. This court found that the reason wais not race neutral because there were two white jurors who, although married, had 2-year-old children and another white juror who had children under the age of 10. Moreover, the venireperson had not indicated, in response to a voir dire question to the venire by the State, that there was any reason she could not sit for several days as an impartial juror due to concern about family or friends at home. 246 Kan. at 313.
■ The text of Belnavis corresponding to the above-quoted syllabus was' disapproved by this court in State v. Walston, 256 Kan. 372, Syl. ¶ 5. This court stated that the comparability of challenged and unchallenged jurors, while relevant, is not entitled to conclusive weight in determining a Batson violation. We stressed the third part of the Batson test — the defendant must carry the burden of proving purposeful discrimination — and pointed out that the Belnavis court failed to afford great deference to the trial court’s finding on this part of the test. 256 Kan. at 380. The Walston court pointed out that there was no indication in Belnavis or in Walston that defense counsel had informed the trial court at the time of the Batson objection that there were some white jurors with characteristics similar to those cited by the State as race-neutral reasons for the strikes. 256 Kan. at 380.
Here, unlike in Walston and Belnavis, the defendant’s counsel did point out to the trial court that some white jurors not challenged had the same characteristics as those cited by the State as race-neutral reasons for striking Hispanic jurors. That fact does not lessen the importance of the language in Walston requiring that great deference be given to the trial court’s determination whether the defendant has met his burden to prove purposeful discrimination by the State. In Walston, this court expressly indicated that a comparison of characteristics analysis is circumstantial evidence of purposeful discrimination and that it might in some instances be substantially compelling evidence of purposeful discrimination. “However, comparison-based circumstantial evidence should not be considered conclusive in every case, as a matter of law.” 256 Kan. at 381. The Walston court concluded:
“Whether the State’s reason is legitimate, or whether it is merely a pretext for a true discriminatory motive of seeking an all-white jury, should be evaluated based on all of the available direct and circumstantial evidence of intent. The similarity of white jurors who were not challenged should be included in the evaluation. Under the Batson framework, the trial court is given primary responsibility for making that evaluation. Appellate courts are to review the trial court’s decision with deference. We disapprove of any language in Belnavis that suggests the comparability of challenged and unchallenged jurors is evidence entitled to conclusive weight in determining a Batson violation.” 256 Kan. at 381.
Body language as a race-neutral reason was discussed by this court in State v. Hood, 245 Kan. 367, 374, 780 P.2d 160 (1989):
“Hostility toward the prosecution, as evidenced by oral responses, tone of voice, sitting with arms crossed, leaning forward when defense counsel conducts voir dire, or leaning back while the prosecutor asks questions, is a matter which the trial court may take into consideration in determining whether the prosecutor has a valid and neutral reason for striking the juror. Normally, the trial court’s decision will be made immediately after voir dire and the trial court will have the benefit of having just observed the prospective jurors and having heard the questions and answers. Again, however, the trial judge must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror of the defendant’s race.”
The defendant is correct in pointing out that some jurors seated had characteristics similar to those of venirepersons struck by the State. However, the defendant ignores that there were other reasons given by the State for the strikes as well.
P.G. knew two witnesses, as did some of the jurors seated. However, whereas the jurors seated stated that their association with the witnesses would not affect their ability to sit as impartial jurors, P.G. responded, "I would hope not.” He first refused to elaborate on this answer. This answer distinguishes him from the jurors seated and was given by the State as a race-neutral reason for the strike. Additionally, the State felt he answered untruthfully about his marital status.
L.M. knew the Arteaga family through SRS. Another juror seated, T.H., indicated he knew Arteaga’s father. In addition to L.M.’s acquaintance with the Arteaga family, the State gave as a race-neutral reason the fact that she was related to people in law enforcement. T.H. had no relation to law enforcement. Only one juror seated had a possible relation to law enforcement: C.E.’s daughter was employed by the prosecutor, and her son-in-law was a jailer. C.E. did not know Arteaga’s family. Therefore, it cannot be said that any juror seated had the same characteristics as L.M.
T.P. also knew a witness. She was good friends with Ruben Valdez’ brother, and she knew Valdez through his brother. Valdez was a key prosecution witness. One juror seated, J.L., was a former employer of David Culbertson, another key prosecution witness and a victim in the case. It would seem that this is a closer acquaintanceship with a witness than T.P. had. The State did explain that it had forgotten that J.L. had formerly employed Culbertson. Another reason given by the State was that T.P. was young.
R.R.C. was stricken in part because she had prior jury service. Three jurors seated also had prior jury service. However, two other reasons were given by the State. First and foremost, the State was unaware R.R.C. was Hispanic. In fact, the trial court ruled that there was no proof that R.R.C. was Hispanic. Another reason given by the State was that she was a former client and that she had some personal problems. No jurors seated were former clients of the prosecutor, although one juror’s daughter was employed by him. Therefore, no other jurors had characteristics similar to R.R.C.
R.G. was struck because he nodded his head very affirmatively in response to the question whether police could make mistakes. The defendant pointed out to the trial court that other venirepersons nodded their heads, too, though he conceded not as affirmatively as R.G.
The defendant has not established that the trial court’s ruling was an abuse of discretion. While some jurors seated had characteristics similar to those cited by the State as race-neutral reasons, thereby calling into question whether the State’s reasons were really race neutral, the State did give other reasons for excluding the venirepersons.
The trial court found that the defendant had made a prima facie showing of discriminatory purpose by showing that the State had used peremptory challenges to exclude 5 of the 6 Hispanics qualified for the jury. The court required the State to give race-neutral reasons for the strikes. After considering the argument of both parties, the court found that the State had not purposely discriminated against Hispanic jurors. We conclude the trial court’s ruling was not an abuse of discretion.
Since oral argument in this matter, the United States Supreme Court has filed a decision that is, at least, partially in point. The case before us is not inconsistent with the new decision, and we draw the reader’s attention to Purkett v. Elem, 63 U.S.L.W. 3814 (U.S. May 15, 1995).
II. JUROR MISCONDUCT
During the trial, juror J.B. expressed concerns to the bailiff about courtroom security. He indicated that the defendant could run (escape) if he wanted to and that the defendant would probably wear tennis shoes the next day. J.B. asked if the defendant was in any type of hand or leg restraints. The bailiff told J.B. that there was a deputy in the court, and J.B.’s response was that the deputy was asleep most of the time. The defendant moved for a mistrial, arguing that J.B. had made up his mind and the jury had been tainted. The court took the motion under advisement and pointed out that the defendant’s courtroom conduct had been exemplary. The court offered to instruct the jury not to concern itself with courtroom security, but both parties declined.
At the close of the State’s case, the defendant renewed his motion for a mistrial based on juror misconduct. The court again stated that there was no showing the juror had prejudged the case.
Thereafter, there was another incident involving J.B. During a recess, J.B. spoke with David Culbertson. They exchanged information about how their lunches were, and there was no discussion about the merits of the case. Also, during the lunch break the previous day J.B. pulled out an Alcoholics Anonymous (AA) medallion and said he thought Culbertson should get into AA. The defendant again moved for a mistrial based on the two incidents of juror misconduct with J.B. The court again took the motion under advisement, finding that the incidents did not rise to the level of juror misconduct that would cause the juror to be excused or that would have tainted the other jurors.
Before the case was submitted to the jury, the issue of juror misconduct was again addressed. The defendant renewed his motion for a mistrial. The defendant requested to have J.B. removed from the juiy and replaced with an alternate juror. The court ruled again that there was no showing of juror misconduct. However, to prevent the appearance of impropriety and to insure a fair trial, the court granted the defendant’s motion to replace J.B. with an alternate juror and denied the motion for mistrial. After the State suggested that replacing J.B. rendered the motion for mistrial moot, the defendant’s counsel stated: "Tour Honor, I discussed the matter with my client, and he feels that the substitution of the alternate juror for the particular juror in question would be appropriate, and he would have no motion for mistrial as to that.” The court found that the motion for mistrial on juror misconduct was moot.
The trial court may declare a mistrial if prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant or to the State. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. See State v. Cahill, 252 Kan. 309, 314, 845 P.2d 624 (1993); State v. Mayberry, 248 Kan. 369, 380, 807 P.2d 86 (1991). The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. See State v. Massey, 242 Kan. 252, Syl. ¶ 4, 747 P.2d 802 (1987).
The defendant asserts that J.B. had adjudged him guilty long before the submission of the case. He agrees that the trial court acted properly in replacing J.B. with an alternate juror. However, he asserts that the court was required to inquire of J.B. or the remaining jurors whether J.B. had made similar comments to other jurors after the first incident of misconduct.
The defendant cites Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993). There, following the verdict in a civil trial, the plaintiff submitted affidavits of three jurors alleging misconduct by members of the jury. The plaintiff filed a motion to recall the jury. This court agreed with the trial court that juror misconduct did occur during deliberations. 252 Kan. at 727-28. The defendant here highlights the following language of this court’s opinion: “Where a juror’s misconduct relates to a material issue, the only way for a trial court to determine if the misconduct improperly influenced the jury’s verdict is to recall the jury and inquire.” 252 Kan. at 732. The defendant does not cite the following language:
“Improper conduct on the part of a juror is charged to the entire panel, as the jurors operate as a unit, and public policy demands that misconduct be discouraged and, insofar as possible, prohibited. We have found it advisable to permit inquiry into a juror s misconduct which comes to the attention of other members of the panel and may be verified or denied. [Citation omitted.] The burden is on the party seeking an order recalling the jurors to show the necessity for the order.
“[R]ecalling the jury to answer for misconduct is within the sound discretion of the trial court.” (Emphasis added.) 252 Kan. at 729.
The defendant reasons that the juror misconduct here related to a material issue, the defendant’s guilt. He suggests that because the misconduct was discovered before the jury was discharged, it was incumbent upon the trial court sua sponte to bring the jury in and inquire if other jurors had been influenced by J.B.
The trial court did not find that juror misconduct occurred here. Also, unlike in Saucedo, where the affidavits of jurors showed that the misconduct occurred during deliberations and was therefore known to all jurors (thereby tainting the jury), there is no showing here that any other juror was aware that J.B. had prejudged the defendant guilty, if indeed he had prejudged. In addition, the defendant never requested the trial court to inquire of the other jurors whether J.B. had made comments to them or whether they had been influenced by J.B.’s alleged prejudging of the defendant’s guilt. Finally, the defendant withdrew his motion for a mistrial after the court replaced J.B. with an alternate juror. The defendant has not shown, and we do not find, that his rights were substantially prejudiced or that the trial court abused its discretion in refusing to declare a mistrial.
III. GRUESOME PHOTOGRAPH
Dr. Vachal performed the autopsy on Jerry Anderson. During her testimony, the State offered into evidence two photographs. State’s Exhibit 1 was a photograph taken before the skin was pulled back, described as follows:
“This is a photograph of a stab wound to the left chest. As you can see, it’s a wide, gaping wound, and it measured slightly less than three inches across this way. And then there’s this central area here in which you could see directly into the chest cavity through this smaller defect right here (indicating).”
This exhibit was admitted into evidence, over the defendant’s objection that the photograph was extremely gruesome, during the State’s direct examination of Dr. Vachal. During the State’s redirect examination of Dr. Vachal, the State offered State’s Exhibit 2, described by Dr. Vachal as follows:
“This is a photograph of the autopsy in progress after the skin has been removed from the thoracic cavity of Jerry Anderson. And you can see the ribs are here, and then this is the stab wound here. And this red material is the muscle that attaches between the ribs called the intercostal muscle.”
The defendant also objected to State’s Exhibit 2, arguing that the photograph was extremely gruesome and that it was cumulative. The State’s response was that the exhibit was to show the actual area of penetration through the ribs, raised by the defense on cross-examination. The trial court overruled the defendant’s objection based on the inquiry by defense counsel concerning the way of entry into the ribs.
On appeal, the defendant argues that the photograph was gruesome and that showing the deceased’s thoracic cavity, with the skin removed, was not necessary to prove any point.
The admission of photographs in a homicide case is a matter that lies within the discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. However, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. State v. Stone, 253 Kan. 105, 111, 853 P.2d 662 (1993); State v. Mayberry, 248 Kan. 369, Syl. ¶ 12.
The cause of death was not in dispute here. However, the defendant's counsel made a point of questioning witnesses, including Dr. Vachal, about the position of die knife and its entry into Anderson's body. Dr. Vachal was questioned extensively about the position of the wound in relation to Anderson's ribs. The position of the knife was certainly relevant to the defendant’s claim that he did not try to stab Anderson and that Anderson fell into the knife. The photograph is gruesome. However, it is a true reproduction of relevant physical facts and material conditions brought into issue by the defendant. The trial court did not abuse its discretion in admitting into evidence State’s Exhibit 2.
IV. LESSER INCLUDED OFFENSE
The defendant next argues that the trial court erred in denying his request to instruct the jury on voluntary manslaughter as a lesser included offense of first-degree felony murder.
K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser crimes of which the accused might be found guilty. An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense. State v. Mitchell, 234 Kan. 185, 189, 672 P.2d 1 (1983); see State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). There is some weighing of the evidence in this analysis, but the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992). The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant. It may be inconclusive, unsatisfactory, and weak and consist only of the defendant's testimony. State v. Coleman, 253 Kan. 335, 352, 856 P.2d 121 (1993).
When murder is committed during the commission of a felony, the rule requiring lesser included instructions does not apply unless the evidence of the underlying felony is weak and inconclusive. See State v. Foy, 224 Kan. 558, Syl. ¶ 5, 582 P.2d 281 (1978). The trial court here did find that the evidence of the underlying felony, attempted aggravated robbery, was weak or inconclusive. The court instructed the jury on the lesser included offenses of second-de gree murder and involuntary manslaughter but declined to instruct the jury on the lesser included offense of voluntary manslaughter.
Voluntary manslaughter is the intentional killing of a human being committed upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403. It is a lesser included offense of first-degree murder. The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. See State v. McClanahan, 254 Kan. 104, 113, 856 P.2d 1021 (1993); State v. Hamons, 248 Kan. 51, 63, 805 P.2d 6 (1991). Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. A provocation must be more than mere words or gestures, and if assault or 'battery is involved, the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. McClanahan, 254 Kan. at 114. This court has stated that a provocation is legally sufficient if it is “calculated to deprive a reasonable man of selfi-control and to cause him to act out of passion rather than reason.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985).
The trial court declined to instruct the jury on voluntary manslaughter because there was no evidence of fighting or arguing— in other words, no legally sufficient provocation. The defendant argues that the killing occurred upon a sudden quarrel when, as Culbertson pushed him away and told Anderson to drive, the defendant grabbed Culbertson and struggled to retrieve his marijuana.
The trial court did not err in refusing to instruct the jury on voluntaiy manslaughter. There was no evidence that the defendant intentionally killed Anderson following legally sufficient provocation. The defendant did testify that Anderson was wounded after Culbertson pushed the defendant and instructed Anderson to drive away. However, the defendant’s version was that the stabbing was unintentional and occurred only when Anderson “went into” the knife. The defendant’s belief that Anderson and Culbertson were going to drive away without paying him for the marijuana does not constitute provocation “calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason.” There was no substantial evidence upon which the jury could have convicted the defendant of voluntary manslaughter.
V. EVIDENCE OF A WITNESS’ VIOLENT CHARACTER
As part of his case in chief, the defendant attempted to elicit from a witness, Tina Sanchez, Culbertson’s reputation for violence when intoxicated. Sanchez testified that she had known Culbertson for 10 years and that she lived in the same community as Culbertson. The court sustained the State’s objection based on insufficient foundation and relevance and materiality. The defendant attempted to make a proffer that Sanchez would testify Culbertson’s reputation was to become crazy and violent when intoxicated. The State objected to the proffer as lacking a sufficient foundation to bring reputation into issue, and the court agreed. The court stated, “[A]t this time to want to make a proffer because the Court found you haven’t laid a proper foundation to bring in the issue of reputation is an inappropriate proffer at this time.” The defendant responded, arguing that Sanchez was a member of the same community as Culbertson, that she had known Culbertson for a number of years, and that she knew his reputation for a certain trait. The court replied that there had been no evidence of any violent behavior of Culbertson and that the defendant had not established Culbertson’s reputation was at issue. At the time the defendant attempted to elicit Sanchez’ testimony, the defendant had not yet testified. There had been no evidence at that point that Culbertson had been violent, although there was evidence that Culbertson had consumed alcohol and was intoxicated.
The defendant’s counsel then indicated that he intended to call Culbertson in regard to some issue and that he intended to present a specific conviction for battery as evidence of a character trait. The court then instructed the defense to call Sanchez at a later time after Culbertson’s reputation was brought into issue. The State at that time indicated that it would object to evidence of the prior conviction of battery because specific instances of conduct may not be used to demonstrate character or reputation evidence. The State also suggested that a single incident does not constitute sufficient evidence to show a character trait or reputation.
The court then permitted the defendant to attempt to make a proffer with Sanchez. The defendant’s counsel asked Sanchez if she had knowledge of Culbertson’s reputation when he is intoxicated; her response was, “What’s knowledge?” Counsel then asked, “Based upon his reputation in the community, does he have a reputation for acting in a certain way when he’s intoxicated?” The State objected to the form of the question as compound and as assuming a matter that is the ultimate question to be asked of the witness. The objection was sustained. The defendant’s counsel then indicated that he could not go any further with the proffer.
The court indicated on the record that it was forced to make a ruling on the reputation issue without the benefit of knowing what the defendant’s defense was going to be, despite at least two earlier attempts to glean what the defense would be. The defendant’s counsel had stated in his opening argument that the defendant would testify, but there was no indication what his testimony would be. Therefore, the court indicated, it had difficulty in ruling upon the proffers based on relevancy, materiality, and probative value. The defendant’s counsel then indicated that the defense was self-defense and a version of the incident diametrically opposed to Culbertson’s version. Counsel indicated that he had not been forthright with some of the information because of Culbertson’s presence in the courtroom during the trial and because of concern that stories would be changed.
Following the defendant’s testimony and that of several other witnesses, the issue of reputation was again addressed outside the presence of the jury. The defendant’s counsel admitted that he was having a difficult time getting Sanchez to understand his questions and, therefore, he was not going to recall her. However, the defense requested to show a character trait of violence based on Culbertson’s prior conviction for battery. The defense opined that Culbertson would admit the conviction should he testify, and if he did not the defense had a journal entry to refresh his recollection. Counsel argued that the defendant’s theory was that Culbertson was the primary actor. In response, the State pointed out that the defense was shifting its focus from reputation to a character trait. The State argued that a 1993 conviction for domestic battery does not show a trait for violence when intoxicated. The State did advise the court that the victim impact statement by Culbertson’s wife in that case showed that Culbertson was intoxicated at the time of the incident. However, the State argued that one domestic battery conviction was not sufficient to show a character trait of violence.
The court excluded evidence of Culbertson’s prior conviction. The court ruled that there must be more than a mere pushing or shoving before it rises to the level that the defendant could perceive violence and feel that he had to meet violence with violence. The court pointed out that the defendant testified he never saw either Anderson or Culbertson with a weapon and that there was no explanation as to why the defendant felt it was necessary to arm himself when tiying to sell $60 worth of marijuana. Therefore, the court ruled that the prior conviction to show a character trait of a propensity for violence was inadmissible.
Following the court’s ruling, defense counsel asked about proffering the conviction, and the court instructed him to obtain a certified copy of the case file, which would include the victim’s impact statement, the complaint, and the journal entry. The court indicated that an uncertified copy of the journal entry was not sufficient. Nothing in the record shows that the defendant ever presented a certified copy of the case file to the trial court for marking as a proffered exhibit.
The defendant argues on appeal that the trial court abused its discretion in excluding reputation evidence and Culbertson’s prior felony conviction for battery. He asserts that Culbertson’s role in the confrontation was crucial to his defense of self-defense due to the conflicting evidence about who the aggressor was.
The State contends that the defendant did not make an adequate proffer because he failed to present a certified copy of the case file of the conviction as directed by the trial court. The State concludes that the defendant abandoned his request to introduce character trait evidence.
The defendant abandoned his attempt to introduce reputation evidence through the testimony of Sanchez. However, the record is sufficient to preserve his attempt to introduce evidence of Culbertson’s prior conviction for domestic battery. The defendant did not present the certified copy of the case file of the conviction. However, both the State and the defendant agreed to stipulate as to the journal entry of conviction and as to the facts underlying the conviction, particularly that it arose out of a domestic situation and that the victim impact statement indicated Culbertson was intoxicated. Although the trial court did not accept the stipulation, it provides this court with a sufficient basis upon which to review the issue.
K.S.A. 60-446 permits evidence of specific instances of a person’s conduct where the person’s character or a trait of his or her character is in issue. To prove conduct on a specific occasion, evidence of specific instances of conduct are inadmissible other than evidence of a conviction of a crime which tends to prove the trait to be bad. K.S.A. 60-447. This court has stated that when self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Specific instances of misconduct may be shown only by evidence of a conviction of a crime. State v. Deavers, 252 Kan. 149, 156-57, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
The defendant cites Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975), a civil case involving a damages claim for injuries received from an assault and batteiy. There was a dispute as to who was the initial aggressor. This court held that reputation or character was relevant to the issue of who was the initial aggressor and that the trial court erred in excluding such evidence. 216 Kan. at 687.
Here, the trial court did not abuse its discretion in excluding evidence of Culbertson’s prior conviction for domestic battery. Culbertson’s role in the incident leading to Anderson’s death was relevant to the defendant’s claim of self-defense. The defendant’s version was that Culbertson pushed him as Culbertson and Anderson attempted to flee with the marijuana. The defendant also testified that Culbertson was being belligerent, and there was evidence that Culbertson was intoxicated. The facts of Culbertson’s prior conviction were that he was intoxicated and that it was in a domestic situation. The prior conviction, while possibly relevant, would have only a minor, if any, bearing on whether Culbertson was violent on this occasion. The evidence of Culbertson’s violence on this occasion was so limited that the trial court did not abuse its discretion in excluding evidence of the prior conviction in a domestic situation. . .
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
The question raised by this appeal is whether the State is entitled to a de novo preliminaiy hearing before a district judge upon appeal from a dismissal of charges by a district magistrate judge at the conclusion of a prehminary hearing. The State appeals from a district judge’s order dismissing the State’s appeal from the district magistrate judge’s finding of no probable cause and dis missal of charges against the defendant. The State contends that it was entitled to a de novo hearing on appeal to the district judge. We disagree and affirm.
The facts are not in dispute. The defendant, Arthur Wendell Kleen, was charged with felony theft by deception in violation of K.S.A. 21-3701(b). Upon preliminary hearing, the district magistrate judge suppressed some of the evidence offered by the State and also denied the admission of several of the State’s exhibits. At the close of the evidence, the district magistrate judge found that the evidence was insufficient to establish probable cause to believe that a crime had been committed and that the defendant committed the crime. The charge of theft by deception was therefore dismissed.
The State filed the following notice of appeal to the district judge pursuant to K.S.A. 1994 Supp. 22-3602(c):
“COMES NOW William C. O’Keefe, Nemaha Comity Attorney and appeals the decision of die Court suppressing the evidence of Exhibits 20A, 21, 21A, 22, and 22A, which the State intended to have admitted to show a previous theft of property and to show a pattern of actions, all of which would be a motive for the crime. This appeal is from the decision rendered by the Court on the above-entitled matter dismissing the case on the 24di day of September, 1993, and this is an appeal from the Magistrate to the District Judge pursuant to that statute.”
On appeal, the district judge required the parties to file briefs on the following questions: (1) Whether the State’s notice of appeal was sufficient and (2) whether the district magistrate judge erred in failing to admit evidence. After consideration of the briefs, the district judge concluded that the State had improperly docketed its appeal because it did not provide a full transcript of the preliminary hearing. The district judge further concluded that even if the appeal were properly docketed, the district magistrate judge’s refusal to admit evidence was proper. Accordingly, the district judge dismissed the appeal.
The State contends that the district judge erred in finding that its appeal was not properly docketed because it failed to file a transcript. The State argues that any appeal taken from a district magistrate judge’s dismissal of a case results in a trial de novo at the district judge level and thus no transcript is necessary to docket the appeal.
The State’s right to appeal in a criminal case is strictly statutory. State v. Freeman, 234 Kan. 278, 279, 670 P.2d 1365 (1983). Appellate courts have jurisdiction to entertain an appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes. State v. Neer, 247 Kan. 137, Syl. ¶ 1, 795 P.2d 362 (1990). In this case, the State filed its appeal under K.S.A. 1994 Supp. 22-3602(c), which provides:
“Appeals to a district judge may be taken by the prosecution from cases before a district magistrate judge as a matter of right in the cases enumerated in subsection (b) and from orders enumerated in K.S.A. 22-3603 and amendments thereto.”
K.S.A. 1994 Supp. 22-3602 (b) states:
“Appeals to the supreme court may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
“(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or B felony. ...”
The State appealed to the district judge pursuant to K.S.A 1994 Supp. 22-3602(c). Its appeal fits within the provisions of K.S.A. 1994 Supp. 22-3603(b)(l) because the district magistrate judge dismissed the complaint against the defendant. The State’s appeal to the district judge is provided for under the same section as the State would appeal to this court from an order of a district judge at preliminary hearing dismissing a complaint. Had this case been a direct appeal from an order of the district judge dismissing a complaint after preliminary hearing, the review would not be de novo. Instead, this court on appeal would examine any legal issues raised and determine whether diere was sufficient evidence to support a probable cause determination. See State v. Hunter, 232 Kan. 853, 658 P.2d 1050 (1983). This same procedure is applicable to an appeal to the district judge from a decision of a district magistrate judge dismissing a complaint or indictment after preliminary hearing.
The State argues that K.S.A. 1994 Supp. 20-302b(c) and K.S.A. 1994 Supp. 22-3610 give it the right to a de novo hearing before the district judge by providing that any appeal permitted to be taken from an order or final decision of a district magistrate judge shall be tried and determined de novo by a district judge. While K.S.A. 1994 Supp. 22-3610 does provide for a de novo hearing before the district court, this statute applies only to traffic, misdemeanor, and other convictions, not to a decision of a district magistrate judge’s order binding or failing to bind a defendant over for trial. State v. Lashley, 233 Kan. 620, 624, 664 P.2d 1358 (1983). The State argues that K.S.A. 1994 Supp. 20-302b(c) provides for a trial de novo of any decision of a district magistrate judge, including a determination that there is not probable cause to bind a defendant over for trial. We do not agree. K.S.A. 1994 Supp. 20-302b(c) provides for a de novo appeal before a district judge “in accordance with the limitations and procedures prescribed by law.” (Emphasis added.) The limitations and procedures prescribed by K.S.A. 1994 Supp. 22-3602(b) and (c) provide that the State has the right to appeal from a district magistrate judge’s order dismissing a criminal complaint to a district judge on the record in the same manner as the State may appeal as a matter of right to this court from a dismissal of a criminal complaint by a district judge.
We hold that when a district magistrate judge dismisses a criminal complaint or indictment for lack of probable cause after a preliminaiy hearing, the State is not entitled to a de novo preliminary hearing before the district judge but is entitled to appeal as a matter of right on the record under the provisions of K.S.A. 1994 Supp. 22-3602(c).
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
This is a controversy between two creditors of a bankrupt farming operation. The creditors, a bank and a cooperative association, each claimed rights to certain farm products and their proceeds. The district court found that lien notices given by the bank to the cooperative association sufficiently complied with 7 U.S.C. § 1631(e)(l)(1994) of the Food Security Act of 1985 (the Act), and granted the bank partial summary judgment against the cooperative association. The parties subsequently stipulated to further entry of judgment against the cooperative association for conversion of farm products and proceeds in the amount of $44,910.63, interest, and costs. The cooperative association appealed. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Larry and Sheree Low were farmers in Miami County, Kansas. For several years, the Lows’ farming operation was financed through promissory notes from First National Bank & Trust (the Bank) in Osawatomie, Kansas, and an unsecured open account at the Miami County Cooperative Association (the Coop). The Bank is a sophisticated commercial lender which attempted to notify the Coop of its security interest under the Act. The Coop is an experienced commercial lender and buyer. The Coop, a supplier which furnished crop production inputs to the Lows, failed to obtain priority over the security interest of the Bank by notifying the Bank that it supplied agricultural chemicals and seed for the crops. See K.S.A. 58-241 et seq.
The Coop received notices of the Bank’s security interest. Although it had knowledge that the Bank held a perfected security interest in the Lows’ farm products and their proceeds, the Coop purchased farm products from the Lows and applied the proceeds of the sales to payment of the Lows’ indebtedness to the Coop. The Coop partially honored the Bank’s notices from November 1987 through June 1991 by sometimes issuing checks to Larry Low, sometimes to the Bank and Low, and other times to itself or Low.
The Lows experienced financial difficulties related to their farming operation, defaulted on the promissory notes to the Bank, and eventually filed for bankruptcy. The Bank filed the action against the Lows (1) for the amounts owed under the notes; (2) to foreclose its security agreement with the Lows; and (3) against the Coop for the proceeds of the farm products sold by the Lows to the Coop. The Coop’s answer asserted it was a buyer of farm products and that the Bank’s failure to comply with the notice provisions of the Act acted to waive the Bank’s claim to a valid, perfected security interest. Both parties filed motions for summary judgment. The Bank asserted that it had substantially complied with the notice requirement. The Coop argued that the federal Act requires that notices to the buyer of farm products strictly follow the requirements set out in the Act.
The district judge found that under the Act the Coop was a buyer of farm products. The judge determined that the Bank had acted in conformance with K.S.A. 1994 Supp. 84-9-401 by filing a financing statement with the Kansas Secretary of State in 1986 and renewing it each subsequent year. The judge observed that from 1986 through 1991, the Bank had sent the Coop written notice of its security interest in the Lows’ crops. The judge acknowledged the Coop’s argument that although it had received the notices, the Bank’s notices failed to comply with the Act by not including (1) a legal description of the real property, (2) the county where the crops were grown, or (3) the specific kind of grain. The judge found the Coop’s argument was not persuasive because all notices (1) identified the lender and debtor; (2) were valid for one year only by operation of law; and (3) claimed an interest in grain and beans grown by the Lows in Miami County, Kansas. The judge observed that a reasonable buyer of farm products would be on notice that the Bank claimed an interest in these farm products. The judge concluded that the Bank’s notices substantially complied with the Act and prevented the Coop from taking the farm products free from the Bank’s claim upon them or the proceeds from their sale.The district judge entered summary judgment for the Bank against the Lows, in rem, and partial summary judgment for the Bank against the Coop. The judge refused summary judgment on the issues as to whether the Bank’s claims were barred by the statute of limitations or whether the Bank had waived its rights.
To avoid a trial of the remaining issues, the Bank and the Coop stipulated that the Lows sold grain to the Coop having a value of $47,910.63, which is the amount of the Bank’s claim against the Coop for conversion. Of that amount, a claim for recovery by the Bank from the Coop of $3,000 is barred by the statute of limitations. The Coop purchased grain from the Lows and applied the proceeds of such sales to payment of the Lows’ indebtedness to the Coop in the amount of $44,910.63. The parties agreed to entry of judgment for the Bank against the Coop for $44,910.63, plus interest and costs. The Coop appeals.
The Act
7 U.S.C. § 1631 (1994) of the Food Security Act of 1985 was enacted in response to the perceived burden on interstate commerce from state laws which permitted a secured lender to enforce liens against a purchaser of farm products, even if the purchaser did not know that the sale of the products violated the lender’s security interest in the products, lacked any practical method for discovering the existence of the security interest, and had no reasonable means to ensure that the seller used the sales proceeds to repay the lender. 7 U.S.C. § 1631(a)(1). The perceived burden on and the obstruction to interstate commerce in farm products refers to security interests in growing crops or crops to be grown, as described in K.S.A. 1994 Supp. 84-9-109(3), created under the Kansas Uniform Commercial Code. See K.S.A. 1994 Supp. 84-9-203 and K.S.A. 1994 Supp. 84-9-402 (1). Congress reasoned that purchasers of farm products should not be subject to double payment for products — at the time of purchase and again if the seller failed to repay the lender. Congress perceived that exposure to double payment inhibited free competition in the market for farm products and constituted a burden and obstruction to interstate commerce in farm products. 7 U.S.C. § 1631(a)(2)-(4).
The Act preempts the Kansas farm products exception found in K.S.A. 1994 Supp. 84-9-307(1). See Farm Credit Bank v. F & A Dairy, 165 Wis. 2d 360, 477 N.W. 2d 357 (Ct. App. 1991) (§ 1631 preempts state farm products law stating that buyer in ordinary course of business does not take free of security interest created by seller engaged in farming operations).
Notice Required
The Act provides two methods of notification of a lender’s security interest to buyers of farm products. Section 1631 provides for either a central filing system or a direct notification system to notify buyers of farm products of a secured party’s interest. 7 U.S.C. § 1631(e)(1), (2). See 7 U.S.C. § 1631(a)(2), (4). Kansas has not enacted provisions for a central fifing system; therefore, notification of a secured party’s interest in farm products is by direct notification to a buyer of farm products.
Central Filing System
The states which adopt the central fifing system are not required to be in strict compliance with the Act. Section 1631 enounces that each effective financing statement (EFS) must be in substantial compliance with the statute and may be sufficient “even though it contains minor errors that are not seriously misleading.” 7 U.S.C. § 1631(c)(4)(I).
Under a central fifing system, an EFS must be filed with the Secretary of State and must include: (1) the name and address of the secured party; (2) the name and address of the person indebted to the secured party; (3) the social security number or taxpayer identification number of the debtor; and (4) “a description of the farm products subject to the security interest created by the debtor, including the amount of such products where applicable; and a reasonable description of the property, including county or parish in which the property is located.” 7 U.S.C. § 1631(e)(4)(D)(i)-(iv). The language of the fourth requirement varies slightly from the requirements stated under a direct notification system. See 7 U.S.C. § 1631(e)(l)(A)(ii)(I)-(IV) (“a description of the farm products subject to the security interest created by the debtor, including the amount of such products where applicable, crop year, county or parish, and a reasonable description of the property”). Each financing statement remains effective for a period of five years from the date of filing, subject to extensions for additional periods of five years. 7 U.S.C: § 1631(c)(4)(F).
The Secretary of State is required to compile all the financing statements into a master list organized according to farm products. The master list is further arranged within each farm product: (1) in alphabetical order according to the name of the debtor; (2) in numerical order according to social security number or taxpayer identification number; (3) geographically by county or parish; and (4) by crop year. 7 U.S.C. § 1631(c)(2)(C). The Secretary of State must maintain a list of all buyers of farm products, commission merchants, and selling agents and must regularly distribute a copy of those portions of the master list that cover the farm products in which such buyer, commission merchant, or selling agent has registered an interest. Upon request, the Secretary of State furnishes confirmation of any EFS to parties who have not previously registered an interest in purchasing farm products. 7 U.S.C. § 1631(c)(2)(D)-(F).
The regulations implementing the central filing system are found in 9 C.F.R. § 205 et seq. (1995). Section 205.103 states that the minimum information necessary on an EFS is: (1) crop year, unless every crop of the farm product in question, for the duration of the EFS, is to be subject to the particular security interest; (2) specific farm product name (i.e., specific farm commodities, species of livestock, and specific products of crops or livestock, as opposed to miscellaneous categories; see §§ 205.106; 205.206); (3) each county or parish in the same state where the farm product is produced or to be produced; (4) name and address of each person subjecting the farm product to the security interest, whether or not a debtor; (5) social security number or taxpayer identification number; (6) further details of the farm product subject to the security interest if needed to distinguish it from other such products owned by the same person or persons but not subject to the particular security interest; and (7) the secured party’s name and address.
The statute does not require an EFS to show crop year, and provides that an EFS without such information must be regarded as applicable to the crop or product in question for every year that the EFS is statutorily effective. 9 C.F.R. § 205.107(b) (1995). The regulations further state that if the EFS does not show an amount, it means “that all of such product owned by the person in question is subject to the security interest in question.” 9 C.F.R. § 205.207(b) (1995). Where the financing statement does not show any further location of the product beyond identifying the county or parish where the farm products are located, all such product in each such county or parish, owned by such person, is subject to the security interest. 9 C.F.R. § 205.207(c) (1995). The regulations continue:
“(d) The need to supply additional information arises only where some of that product owned by that person is subject to the security interest and some is not.
“(e) The additional information about amount and property must be sufficient to enable a reader of the information to identify what product owned by that person is subject, as distinguished from what of the' same product owned by the same person is not subject. The precision needed, in the description of the amount and location, would vary from case to case.
“(f) The basis for this is the purpose of the entire exercise, to make information available as necessary to enable an identification of what product is subject to a security interest as distinguished from what is not.” 9 C.F.R. § 205.207(d)-(f) (1995).
The provisions of the central fifing system contemplate that certain information be contained in the financing statements, but provide for the interpretation of certain omissions and minor errors which are not seriously misleading. See 7 U.S.C. § 1631(c)(4)(I). See also First Bank v. Eastern Livestock Co., 837 F. Supp. 792 (S.D. Miss. 1993) (under central fifing system, proper focus should be on whether financing statement is adequate to warn prospective purchasers that there is a preexisting security interest); Farmers & Merchants State Bank v. Teveldal, 524 N.W.2d 874 (S.D. 1994) (bank’s omission of farm product code number held not to render financing statement insufficient as against subsequently secured supplier of feed).
Direct Notice Requirements
In relevant part, 7 U.S.C. § 1631(e), governing the requisite direct notice, provides that a buyer of farm products takes subject to a security interest created by the seller if, within one year before the sale of the farm products, the buyer has received from the secured party written notice of the security interest organized according to farm products. Such notice should contain: (1) the name and address of the secured party; (2) the name and address of the person indebted to the secured party; (3) the social security number of the debtor; and (4) a description of the farm products subject to the security interest created by the debtor, including the amount of such products where applicable, crop year, county or parish, and a reasonable description of the property. 7 U.S.C. § 1631(e)(l)(A)(ii). The notice provided by the secured party must also contain any payment obligations imposed on the buyer by the secured party. 7 U.S.C. § 1631(e)(l)(A)(v). The statute further provides that such notice will lapse on either the expiration period of the statement or the transmission of a notice by the secured party that the statement has lapsed, whichever occurs first. 7 U.S.C. § 1631(e)(l)(A)(iv).
The Coop admits that it received the yearly written notices from the Bank claiming a security interest in grain sold to the Coop by the Lows. The Coop argues that the notices sent by the Bank were fatally defective because they failed to provide an adequate description of the collateral; failed to describe the real property and county where the crops were located or grown; certain notices failed to spefcify a particular crop year; and none of the notices specified the amount of collateral subject to the Bank’s security interest.
The Bank’s notices were preprinted forms with space provided to insert the required information. Each form states the terms “farm products,’’ “buyers,” “commission merchants,” and “selling agents” have the¡ meanings given to them by the Act. Each of the Bank’s notices clearly sets forth the name and address of the secured party, the name and address of the person indebted to the secured party, and:the social security number of the debtor. Each notice states:
“The Debtor has named you as a potential buyer, commission merchant or selling agent of farm products. You are hereby given notice pursuant to the Food Security Act of 1985 that the Debtor has given a security interest to the Secured Party in (1) the farm products described below and (2) any proceeds from the sale of such farm products. This notice is effective for 1 year from the date you receive it.”
Each notice has space for a description of the farm products subject to the security interest, setting forth particular space under the headings “Description,” “Crop Year(s),” and “Amount.” Below the space under each heading, each notice states:
“If no amount is specified for the above described farm products, the security interest covers all such farm products without limitation as to amount. The farm products described above are or may be located on (describe property and county or parish where farm products are or may be located).”
Immediately below the space provided for a description of the location of the property and county is a box, left unchecked on each notice, which states: “The security interest also covers the described farm products wherever located and is not limited to those located on the above property."
Under the heading “Payment Obligations,” every notice sent by the Bank specified the following:
“You will be subject to the security interest of the Secured Party in the farm products unless the following payment obligations are satisfied: Any check or draft issued to Debtor as full or partial payment for any sale of such farm products must be made payable to both the Debtor and the Secured Party, delivered to or received by Secured Party, and finally paid.”
Finally, above the signature of the Bank’s authorized representative is the statement: “Satisfaction of the payment obligations will not affect the security interest of the Secured Party in proceeds of the sale of such farm products.”
In the notices sent by the Bank to the Coop, the property subject to the security interest is variously described as “grain,” “grain and/ or beans,” or “grain/beans.” Despite the particular space provided on each notice to give such information, die Bank’s notices filed in December 1990 and December 1991 fail to specify a crop year; none of the notices specify an amount; and none of the notices describe the real property upon which the crops were grown. The question is whether this information contained in the Bank’s no tification to the Coop provides a sufficient description of the farm products subject to its security interests under the provisions of the Act. This court’s review of that question of law is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The Act’s direct notification section does not address the effect of insufficient information contained in the notice. Although several cases are cited, neither party is able to provide case law which specifically interprets the notice requirements of the direct notification method. The Coop simply argues that the Bank’s notices fail to meet the specific requirements in § 1631(e)(l)(A)(ii)(IV) and it is not relevant that the Coop had actual knowledge of the Bank’s security interest in the farm products. See 7 U.S.C. § 1631(d). The Coop points out that there is no express provision for “minor errors,” “substantial compliance,” or similar statutory guidance in the direct notice system. The Act specifically provides that a buyer shall take free of a security interest created by the seller “even though the security interest is perfected; and the buyer knows of the existence of such interest.” 7 U.S.C. § 1631(d). The Bank asserts that its omissions were minor and were not misleading. It argues that the strict approach advocated by the Coop for direct notice is inconsistent with the statutory and regulatory approach under a centralized filing system. In support of their respective positions, each party refers to the statutory and regulatory requirements of a central filing system and cites cases that are not directly on point.
It is clear that the Bank did not include all the information required under § 1631(e)(1) in its notices to the Coop. A strict interpretation of the Act would dictate judgment for the Coop. If § 1631(e)(1) of the Act contemplates that a buyer of farm products does not take free of a security interest created by the seller if the secured party’s notice to the buyer is substantially in compliance with the Act, the Bank is entitled to judgment.
In Lisco State Bank v. McCombs Ranches, Inc., 752 F. Supp. 329, 336 (D. Neb. 1990), the United States District Court in Nebraska held that a bank failed to meet the notice requirements of either the central filing system or the direct notice method for its security interest in cattle, even though the purchaser was informed at the time of the sale that the bank had a lien against the cattle. In that case, the court found that the bank failed to make an effort to comply with the requirements of Nebraska’s central fihng system after the debtor refused to sign the necessary financing statement. The court’s discussion of the central filing system emphasized that its decision was limited to the particular facts involved and “not intended to address situations where a lender made a commercially reasonable attempt to comply with the provisions of the FSA.” 752 F. Supp. at 339.
In addressing the bank’s failure to comply with the direct notice system, the court held the bank “failed to show . . . that it met or substantially complied with the material terms of § 1631(e)(1).” 752 F. Supp. at 339. The court stated:
“There is no dispute that the defendant did not receive written notice of the lien held by fhe'plaintiff. At most it appears from the evidentiary materials before this court that the extent of the notice to fire defendant was the name of the secured party. In short, it cannot be said that the notice received by the defendant herein met with the ‘direct notice’ requirements of § 1631(e)(1).” 752 F. Supp. at 339.
The court noted that “the ‘direct notice’ provisions of the FSA [do] not contain the ‘substantial compliance’ language included in the definition of the EFS. Seemingly compliance with the precise terms of the Act is required.” 752 F. Supp. at 339 n.6.
Others have noted that the Act appears to set different standards of compliance for the two methods of providing notice. In their article in the University of Kansas Law Review discussing the Act, Drew L. Kershen and J. Thomas Harding noted certain differences between prenotification system (PNS) notices and the central fifing systems’ EFS’s:
“Without discussion, the Conference Committee transferred many EFS terms from [the central notification system] CNS into section 1324 PNS notices. As a result, the form of a PNS notice parallels section 1324’s definition of an EFS. Unexplained anomalies between tire two, however, create certain problems. These problems may or may not have been intentional, but will result in confusion. A brief review of the more important anomalies follows.
“1. Minor Errors — Applicability to PNS Notice and CNS Master Lists; Overlap with Mandatory Amendments
“Using the language of Code section 9-402(8), subsection 1324(c)(4)(I) validates an EFS that substantially complies with section 1324 ‘even though it contains minor errors that are not seriously misleading.’ No similar ‘minor errors’ exception is expressly included in PNS. This omission encourages buyers, commission merchants, or selling agents who receive PNS notices with minor errors to argue that the notices are ineffective because they are not in exact compliance with section 1324. This argument should be rejected for three reasons.
“First, nothing in section 1324’s legislative history suggests that the omission was intentional. If anything, legislative history strongly indicates that, when possible, the two systems should be treated to achieve uniformity and minimize uncertainty. The USDA takes this approach in handling.the similar omission of ‘crop year’ as part of a farm products description under die definition of an EFS, even though it is a CNS master fist category and one of the PNS notice description requirements.
“Second, like CNS, the purpose of PNS notice is to protect secured parties when buyers, commission merchants, and selling agents have actual notice that die farm products wiffi which they are dealing are subject to a security interest. PNS notices containing only minor and not seriously misleading errors serve this purpose without unduly burdening recipients.
“Finally, federal courts are courts of equity. Courts do not need an express exception to do equity, when an exception can be implied from section 1324’s purposes and legislative history. Code section 9-402(8) was added only ‘to discourage the fanatical and impossibly refined reading’ of the Code’s statutory requirements. Federal courts should be able to avoid ‘far out’ interpretations of section 1324 without an express minor errors provision in PNS.” Kershen and Hardin, Congress Takes Exception to the Farm Products Exception of the UCC: Centralized and Presale Notification Systems, 36 Kan. L. Rev. 383,411-12 (1988). See also Clear Title: A Buyer’s Bonus, A Lender’s Loss — Repeal of UCC $ 9-307(1) Farm Products Exception by Food Security Act § 1324 [7 U.S.C. § 1631], 26 Washburn L. J. 71 (1986).
Congress passed the Act to shift the potential burden of loss in sales of farm products to lenders who finance farm operations, rather than have that burden imposed upon buyers who purchase farm products in the ordinary course of business. The Act provides:
“Except as provided in subsection (e) of this section and notwithstanding any other provision of Federal, State, or local law, a buyer who in the ordinary course of business buys a farm product from a seller engaged in farming operations shall take free of a security interest created by the seller, even though the security interest is perfected; and the buyer knows of the existence of such interest.” 7 U.S.C. § 1631(d).
This section of the Act preempts the Kansas Uniform Commercial Code provisions and any other federal, state, or local law governing security interests in agricultural products and production of agricultural products.
In Kansas, the survival of the lender s security interest in farm products under the Act is conditioned upon direct notice to the buyer in the ordinary course of business. The adequacy and effect of notice of a security interest to a buyer of farm products is governed by provisions of the Act and is a question of law. Because the Act is unclear as to the adequacy of the notice to the buyer, we must apply the rules of statutory construction to determine whether Congress intended that the direct notice to the buyer strictly comply or substantially comply with the Act’s provisions.
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). See State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994). Congress is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results. See Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992).
Congressional intention is to be determined from a general consideration of the entire act. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. See Todd v. Kelly, 251 Kan. at 516.
One must start with the assumption that, compared to the direct notification system to the buyer of farm products, central filing system notification would require more precise information because of its method of filing and its role in giving notice of the security interest to the public at large. Under 7 U.S.C. § 1631(c)(4)(I), the central filing system set up by the secretary of state of each state does not require strict compliance. Section 1631(c)(4)(I) states that each EFS must be in substantial compliance with the statute, and may be sufficient “even though it contains minor errors that are not seriously misleading.” It is certain that Congress intended that buyers receive notice of a lender’s security interest in farm products. It is logical and reasonable to conclude that Congress did not intend that buyers who receive direct notice containing minor omissions and errors which are not misleading could claim that the notice was ineffective because it did not strictly comply with the requirements of the Act.
The notices sent by the Bank to the Coop are not in strict compliance with the direct notice requirements of the Act. Adopting the Coop’s argument that direct notices must stricdy comply with the Act’s notice requirements would allow the Coop to disregard the Bank’s notice, even though the Coop was aware of the Bank’s security interest in the farm product. Such an interpretation would not serve the legislative intent of the Act.
The Bank’s notices were in substantial compliance with the direct notice requirements of the Act and did not mislead the Coop. When the Coop received the notices, it questioned their effectiveness, but was not misled by them. Contrary to the Coop’s assertion that the Bank’s notices of its security interest were .insufficient, the Bank’s notices substantially complied with the Act’s direct notice requirements and were sufficient to place the Coop on notice of its security interest in the crops. Because the district court correctly determined that the Bank’s notices of the security interest to the Coop were sufficient, we need not determine if the district court erred in finding that the Coop was a buyer as defined by the Act.
Affirmed.
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