REPOR
TS
OF
CASES ARGUED AND
DETERMINED
IN
THE
SUPREME
COUR
T
OF
THE
STATE OF
KANSAS
REPORTER:
S
ARA
R.
S
TRA
TTON
Advance Sheets, Volume 317, No. 3
Opinions filed in April – June 2023
"Advance Sheets of the Kansas Supreme Court and Kansas
Court of
Appeals"
(USPS 007-480) are published every month ex-
cept February, June, August, and October by the State of Kansas,
Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612-
1598. Periodical postage paid at Topeka, Kansas. POSTMASTER:
Send address changes to "Advance Sheets of the Kansas
Supreme
Court and Kansas Court of
Appeals,"
State Law Librarian, Kansas
Judicial Center, 301 West 10th, Topeka, Kansas 66612-1598.
Price List for Official
Reports
Subscriptions (bound vol. and adv. sheets) .................... $65.00
Current Bound Volume Subscription (each) ................
60.00
Noncurrent and Reprint Volumes (each) ......................
60.00
Advance Sheets (each) ...................................................
15.00
Rule Book (each) ............................................................
25.00
To order please contact State Law Library
@
785-296-3257
or email [email protected]
COPYRIGHT 2023 BY
Sara R. Stratton, Official Reporter
For the use and benefit of the State of Kansas
JUSTICES AND OFFICERS OF THE KANSAS
SUPREME COURT
(III)
_____
CHIEF JUSTICE:
HON. MARLA J. LUCKERT .................................................. Topeka
JUSTICES:
HON. ERIC S. ROSEN .......................................................... Topeka
HON. DAN BILES ............................................................. Shawnee
HON. CALEB STEGALL .................................................. Lawrence
HON. EVELYN Z. WILSON ........................................ Smith Center
HON. KEYNEN WALL JR. ............................................... Scott City
HON. MELISSA TAYLOR STANDRIDGE …………..…..... Leawood
OFFICERS:
Reporter of Decisions………….……….……SARA R. STRATTON
Clerk ............................................................... DOUGLAS T. SHIMA
Judicial Administrator ..................................... STEPHANIE SMITH
Disciplinary Administrator .............................. GAYLE B. LARKIN
(IV)
IN THE SUPREME COURT OF THE STATE OF KANSAS
Administrative Order
2023-RL-052
Rules Relating to Judicial Conduct
The court amends the attached Supreme Court Rule 650, effective the date
of this order.
Dated this 22nd day of June 2023.
FOR THE COURT
MARLA LUCKERT
Chief Justice
(V)
Rule 650
JUDICIAL ETHICS ADVISORY PANEL
(a) Purpose. The judicial ethics advisory panel advises a Kansas judge as de-
fined in Rule 603 seeking an opinion on whether an intended, future course
of conduct complies with the Code of Judicial Conduct.
(b) Members; Terms. The Supreme Court expands the panel from three mem-
bers to five members. The court will appoint five retired justices or judges
to serve on the panel for the following terms.
(1) Inaugural Term. The Supreme Court will appoint the two members
added during the expansion for an inaugural 1-year term. Under sub-
section (b)(2), these two members may serve three more consecutive
4-year terms.
(2) Terms. Other than the inaugural term under subsection (b)(1), the Su-
preme Court will appoint each member for a 4-year term. No member
may serve more than three consecutive 4-year terms, except that a
member initially appointed to serve an unexpired term created by a
vacancy may serve three more consecutive 4-year terms.
(3) Vacancy. The Supreme Court will appoint a new member to fill a va-
cancy occurring during a term, and the new member will serve the un-
expired term of the previous member. A vacancy will occur when a
member no longer meets the qualifications for the appointment.
(c) Chair; Meetings. The Supreme Court will designate one member as chair
of the panel. The panel will meet as needed and when scheduled by the
chair.
(d) Quorum. A quorum of members must be present for the panel to act. Three
members constitute a quorum.
(e) Reimbursement; Compensation. The Supreme Court will reimburse a
member for actual and necessary expenses incurred in the discharge of of-
ficial duties and will determine compensation for each member.
(f) Request. A judge must submit a request for a judicial ethics advisory opin-
ion to the clerk of the appellate courts. The clerk will forward a request that
meets the requirements of this rule to the panel and will disclose the identity
of the judge to the panel. Only a person subject to Rule 601B et seq. may
submit a request.
(g) Request Requirements. A request for an advisory opinion must relate to
prospective conduct only. The clerk of the appellate courts will not accept
or refer a request that does not contain the following:
(1) a detailed statement of the facts pertaining to the intended conduct;
(2) a clear and concise question of judicial ethics; and
(3) a concise memorandum setting forth the judge’s own research and con-
clusions concerning the question.
(h) Advisory Opinion Content. In an advisory opinion, the panel will only
address whether an intended, future course of conduct violates the Code of
Judicial Conduct and provide an application of the Code to the factual situ-
ation presented. The panel must not address issues of law or the ethical pro-
priety of past or present conduct. The panel must not disclose the identity
of the requesting judge in the opinion.
(VI)
(i) Distribution; Retention. The clerk of the appellate courts will provide a
copy of an advisory opinion to the chief justice, the Commission on Judicial
Conduct, the requesting judge, and the Supreme Court Law Library. The
clerk will keep the original opinion in a permanent file.
(j) Discipline. The Commission on Judicial Conduct will consider the fact that
a judge requested and relied on an advisory opinion when disposing of a
complaint and when determining whether to recommend that the Supreme
Court discipline the judge. The panel’s advisory opinion is not binding on
the Commission on Judicial Conduct or the Supreme Court.
[History: Am. effective March 6, 1984; Am. effective November 17, 1987; Am.
(f) effective May 11, 1995; Am. (b) and (f) effective May 1, 1999; Am. effective
August 31, 2015; Am. effective June 22, 2023.]
KANSAS SUPREME COURT
Table of Cases
317 Kan. No. 3
Page
(VII)
In re Ayesh ............................................................................... 405
In re Barnds.............................................................................. 378
In re Eland................................................................................ 315
In re Marriage of Holliday ....................................................... 469
In re Marriage of Shafer .......................................................... 481
In re Marvin S. Robinson Charitable Trust .............................. 492
In re Wrongful Conviction of Bell ........................................... 334
Kansas Fire and Safety Equipment v. City of Topeka ............. 418
Sierra Club v. Stanek ............................................................... 358
State v. Bailey .......................................................................... 487
State v. Buchanan ..................................................................... 443
State v. Busch........................................................................... 308
State v. Johnson ....................................................................... 458
State v. Moncla ........................................................................ 413
State v. Steinert ........................................................................ 342
State v. Taylor .......................................................................... 364
PETITIONS FOR REVIEW OF
DECISIONS OF THE COURT OF APPEALS
317 Kan. No. 3
DOCKET REPORTED
T
ITLE NUMBER DISPOSITION DATE BELOW
(VIII)
American Warrior, Inc. v.
Board of Finney County
Comm'rs ..............................
124,998
Granted .......................
06/23/2023
63 Kan. App. 2d 123
Bates v. State .........................
124,550
Denied ........................
05/05/2023
Unpublished
Bell v. State ...........................
124,447
Denied ........................
06/27/2023
Unpublished
In re K.D................................
125,042
Denied ........................
06/28/2023
Unpublished
In re Marriage of Obembe and
Grammatikopoulou .............
124,097
Denied ........................
06/28/2023
Unpublished
Jennings v. Shauck ................
123,495
Granted .......................
06/23/2023
Unpublished
League of Women Voters of
Kansas v. Schwab ...............
125,084
Granted .......................
06/23/2023
63 Kan. App. 2d 187
Miller v. Hutchinson Regional
Med. Center ........................
124,357
Denied ........................
05/05/2023
63 Kan. App. 2d 57
Moore v. Moore .....................
122,944
Denied ........................
05/05/2023
Unpublished
Robinson v. State ...................
122,089
Denied ........................
06/23/2023
Unpublished
State v. Anderson ...................
124,727
Denied ........................
05/05/2023
Unpublished
State v. Bailey ........................
125,065
Denied ........................
05/05/2023
Unpublished
State v. Blackmon ..................
123,988
Denied ........................
05/05/2023
Unpublished
State v. Cline .........................
125,410
Denied ........................
06/28/2023
63 Kan. App. 2d 167
State v. Daniels ......................
124,626
Granted .......................
06/28/2023
Unpublished
State v. Dempsey ...................
124,627
Denied ........................
06/27/2023
Unpublished
State v. Doll ...........................
124,147
Denied ........................
05/05/2023
Unpublished
State v. Dupree ......................
123,837
Denied ........................
06/27/2023
Unpublished
State v. Eismann ....................
124,664
Denied ........................
05/05/2023
Unpublished
State v. Elias ..........................
124,387
Denied ........................
05/05/2023
Unpublished
State v. Ford ..........................
124,236
Granted .......................
06/23/2023
Unpublished
State v. Guebara.....................
120,994
Granted .......................
06/23/2023
Unpublished
State v. Jackson .....................
124,540
Denied ........................
05/05/2023
Unpublished
State v. Jarmon ......................
124,558
Denied ........................
06/27/2023
Unpublished
State v. Jones .........................
124,174
Granted .......................
06/29/2023
Unpublished
State v. Martin .......................
124,607
Granted .......................
06/23/2023
Unpublished
State v. McBride ....................
124,645
Denied ........................
05/05/2023
Unpublished
State v. Ninh ..........................
122,782
Granted .......................
06/23/2023
63 Kan. App. 2d 91
State v. Orange ......................
124,785
Denied ........................
06/27/2023
Unpublished
State v. Ransdell ....................
124,628
Denied ........................
06/27/2023
Unpublished
State v. Redmon.....................
123,811
Denied ........................
06/27/2023
Unpublished
State v. Rush ..........................
124,150
Denied ........................
05/05/2023
Unpublished
State v. Vano .........................
124,232
Denied ........................
06/28/2023
Unpublished
State v. Winter .......................
124,172
Denied ........................
05/05/2023
Unpublished
Surface Companies, Inc. v.
Pishny Real Estate Services
124,512
Denied ........................
06/27/2023
Unpublished
Sweeney v. Kansas Dept. of
Revenue ..............................
124,409
Denied ........................
05/05/2023
Unpublished
DOCKET REPORTED
T
ITLE NUMBER DISPOSITION DATE BELOW
(IX)
U.S. Energy Exploration Corp.
v. Directional Drilling
Systems ...............................
123,885
Denied ........................
05/05/2023
Unpublished
Wells v. Kansas Corporation
Comm'n ...............................
124,743
Denied ........................
06/27/2023
Unpublished
Wells v. Kansas Corporation
Comm'n ...............................
124,916
Denied ........................
06/27/2023
Unpublished
Wells v. Kansas Corporation
Comm'n ...............................
124,606
Denied ........................
06/27/2023
Unpublished
Wiedemann v. Pi Kappa Phi
Fraternity .............................
124,251
Denied ........................
05/05/2023
62 Kan. App. 2d 704
Williams v. Pinson .................
124,997
Denied ........................
06/27/2023
Unpublished
Willming v. Atchison Hospita
125,102
Denied ........................
06/28/2023
Unpublished
SUBJECT INDEX
317 Kan. No. 3
(Cumulative for Advance sheets 1, 2 and 3)
Subjects in this Advance sheets are marked with *.
PAGE
(X)
ADMINISTRATIVE LAW:
Act Provides Remedy to Appeal Relocation Benefits—Procedure.
K.S.A. 58-3509(a) of the Kansas Relocation Assistance for Persons Dis-
placed by Acquisition of Real Property Act, K.S.A. 58-3501 et seq., pro-
vides a comprehensive remedy for vindicating the statutory right to reloca-
tion benefits and assistance. K.S.A. 58-3509(a) allows a displaced person
to appeal to the state, agency, or political subdivision within 60 days of the
initial determination of relocation benefits. If such an appeal is made, an
independent hearing examiner shall be appointed by the condemning au-
thority within 10 days and a determination of the appeal made within 60
days. After administrative review is complete, any party wishing to appeal
the ruling of the hearing examiner may do so by filing a written notice of
appeal with the clerk of the district court within 30 days of the hearing ex-
aminer's decision. Any such appeal to the district court shall be a trial de
novo only on the issue of relocation benefits.
Kansas Fire and Safety Equipment v. City of Topeka ………………… 418*
Administrative Agency -- Subject Matter Jurisdiction Derived from
Statutes. An administrative agency derives subject matter jurisdiction over
a matter from statutes. Fisher v. Kansas Dept. of Revenue ………..…… 119
Statute Provides Party Must Exhaust Administrative Remedies before
Appealing Relocation Benefits and Assistance to District Court. A party
must exhaust their administrative remedies under K.S.A. 58-3509(a) before
appealing a hearing examiner's ruling on the issue of relocation benefits and
assistance to the district court. The failure to exhaust such administrative
remedies deprives the district court of subject matter jurisdiction.
Kansas Fire and Safety Equipment v. City of Topeka ………………… 418*
APPEAL AND ERROR:
Clerical Mistakes May Be Corrected by Court at Any Time. Clerical
mistakes in judgments, orders, or other parts of the record and errors in the
record arising from oversight or omission may be corrected by the court at
any time and after such notice, if any, as the court orders.
State v. Redick ……………………………………………...……..…… 146
District Court's Review of Workability of Restitution Plan—Appellate Re-
view. An appellate court reviews a district court's decision on the workability of a
restitution plan for an abuse of discretion. The party asserting error has the burden
of showing an abuse of discretion. State v. Taylor ………………………….364*
Failure to Meet Burden of Production—Remand not Appropriate Remedy.
When a party fails to meet its burden of production and persuasion, remand is not
generally an appropriate remedy. Granados v. Wilson …………………..…… 34
Invited Error Doctrine—Application. The invited error doctrine does not bar an
appellant from raising an issue on appeal when he or she merely acceded to—but
317 KAN. SUBJECT INDEX XI
PAGE
did not affirmatively request—the error. The doctrine applies only when a defend-
ant actively pursues and induces the court to make the error.
State v. Smith ……………………………………………………...……….. 130
New Claims Cannot Be Raised on Appeal. A defendant cannot raise new
claims for the first time on appeal unless an exception applies.
Shelton-Jenkins v. State …………………………………………..…… 141
Party Must Seek Review to Preserve Issue on Appeal. A party aggrieved
by a Court of Appeals' decision on a particular issue must seek review to
preserve that issue for Kansas Supreme Court review.
State v. Slusser ……………………………………………..………….. 174
Sufficiency of Evidence Challenge to Conviction – Appellate Review.
When a defendant challenges sufficiency of the evidence supporting a con-
viction, an appellate court looks at all the evidence in the light most favor-
able to the prosecution to decide whether a rational fact-finder could have
found the defendant guilty beyond a reasonable doubt. In this process, the
reviewing court must not reweigh evidence, resolve evidentiary conflicts,
or reassess witness credibility. State v. Spencer ……………..……….... 295
ATTORNEY AND CLIENT:
Claim of Ineffective Assistance of Counsel—Proof of Deprivation of Right to
Counsel. A defendant claiming ineffective assistance of counsel to warrant setting
aside a plea under K.S.A. 2022 Supp. 22-3210(d)(2) must demonstrate counsel's
performance deprived the defendant of his or her Sixth Amendment right to coun-
sel. Shelton-Jenkins v. State …………………………………………...….… 141
Disciplinary Proceeding—Disbarment. Attorney charged in a formal complaint
by the Disciplinary Administrator, with violations of KRPC 1.15 (safekeeping
property) and 1.16.(declining or terminating representation), voluntarily surren-
dered his license to practice law in Kansas. In re Angst ……………..……….. 282
— —. Attorney charged with multiple violations of KRPCs in a formal complaint
filed by the Disciplinary Administrator, voluntarily surrendered his license to prac-
tice law in Kansas. In a letter signed March 27, 2023, Costello voluntarily surren-
dered his license to practice law under Supreme Court Rule 230(a) (2023 Kan. S.
Ct. R. at 290). In re Costello ……………….....…..…….................................. 149
— Indefinite Suspension. Respondent was ordered indefinitely suspended
due to the unauthorized practice of law following a prior suspension of his
license. Respondent entered into a Summary Agreement in which he admit-
ted various violations of the KRPCs and stipulated to findings of fact by the
disciplinary panel. The Supreme Court ordered Respondent's license be in-
definitely suspended. In re Ayesh …………………………………...... 405*
— One Hundred Eighty-day Suspension. Attorney is suspended from the
practice of law in Kansas for 180 days for violating KRPCs that related to
his mishandling of the transfer of a mineral interest title. Respondent did
not dispute the findings or recommendations of the disciplinary hearing
317 KAN. SUBJECT INDEX XII
PAGE
panel or the Disciplinary Administrator. The Supreme Court suspended the
respondent for 180 days. In re Eland ………………………….…..….. 315*
— One-year Suspension. Attorney entered into a summary submission agree-
ment under Supreme Court Rule 223, stipulating that he violated KRPCs 1.1, 1.3,
1.15(a) and (b), 8.4(c) and (d), Rule 210(c), and Rule 221(b). Attorney is disci-
plined by a one-year suspension, to run concurrent with his suspension in the state
of Maryland. The Supreme Court further orders as a condition of reinstatement of
his Kansas license that attorney show that his Maryland and District of Columbia
law licenses have been reinstated. In re Marks …………………………..…… 10
— —. Attorney is suspended for one year from the practice of law in the state of
Kansas, in accordance with Supreme Court Rule 225(a)(3) (2023 Kan. S. Ct. R. at
281), for violations of KRPC 1.15 (safekeeping property), 8.4(c) (professional
misconduct), and Rule 210 (duty to cooperate). Respondent will be required to
undergo a reinstatement hearing. In re McVey ……………..…………...…… 266
— Order of Reinstatement. Attorney petitioned for reinstatement of his license
to practice law in Kansas after a two-year suspension in 2013. Following a rein-
statement hearing, attorney is reinstated, subject to a term of three years of super-
vised probation. In re Galloway ……………………………...………...…… 87
— Published censure. Attorney Mitchell Spencer committed a misdemeanor that
involved dishonesty, fraud, deceit, or misrepresentation which adversely reflected
on his fitness to practice law, but the Kansas Supreme Court held it did not seri-
ously adversely reflect on his fitness to practice law. A minority of the court would
impose the jointly agreed to recommended discipline of a 90-day suspension with
the suspension being stayed while the respondent is placed on probation for one
year. The court held published censure to be an appropriate sanction.
In re Spencer …..…………………………………………………………..... 70
— Reinstatement. Attorney suspended for 90 days in October 2022, files motion
for reinstatement. Disciplinary Administrator moved for reinstatement hearing, but
Kansas Supreme Court denied motion for hearing, and granted Malone's reinstate-
ment, and ordered his license to be reinstated when CLE and attorney registration
fees are in compliance. In re Malone ………………...………………..…….. 117
— Three-month Suspension, Stayed Pending Successful Completion
of Two-year Period of Probation. Respondent is suspended for three
months from the practice of law in Kansas, which is stayed pending suc-
cessful completion of two-year period of probation for violations of
KRPC 3.4(c), 4.4(a), 8.4(a), (d), and (g). In re Barnds ………...…… 378*
CIVIL PROCEDURE:
Action for Wrongful Conviction and Imprisonment—Statutory Appli-
cation. K.S.A. 2022 Supp. 60-5004(d)(2)'s use of the phrase "convicted,
imprisoned and released from custody" refers to the imprisonment for which
a claimant is seeking compensation, rather than some other, unrelated im-
prisonment. In re Wrongful Conviction of Bell ………………….……. 334*
317 KAN. SUBJECT INDEX XIII
PAGE
Moot Case—Actual Controversy has Ended. A case is moot when the
actual controversy has ended and the only judgment that could be entered
would be ineffectual for any purpose and would not impact any of the par-
ties' rights. Sierra Club v. Stanek …………………………….……….. 358*
COURTS:
Appellate Review of Cases Decided on Documents and Stipulated Facts.
Appellate courts need not defer to the district court when reviewing cases
decided on documents and stipulated facts.
In re Marvin S. Robinson Charitable Trust …………….…………….. 492*
Courts Exercise Judicial Review Only in Actual Case or Controversy—
Requirement of Standing. While courts generally have authority to deter-
mine whether a statute is unconstitutional, this power of judicial review is
not unlimited. The separation of powers doctrine embodied in the Kansas
constitutional framework requires the court exercise judicial review only
when the constitutional challenge is presented in an actual case or contro-
versy between the parties. Under this case-or-controversy requirement, par-
ties must show (among other factors) that they have standing. Standing is
the right to make a legal claim. To have such a right, a party generally must
show an injury in fact; absent that injury, courts lack authority to entertain
the party's claim. In this respect, standing is both a requirement for a case
or controversy, i.e., justiciability, and a component of this court's subject
matter jurisdiction. State v. Strong …………………………………..… 197
Kansas Supreme Court has Power to Take Actions Necessary for the Admin-
istration of Justice. The Kansas Supreme Court has the inherent power to take
actions reasonably necessary for the administration of justice, provided the exer-
cise of that power in no way contravenes or is inconsistent with the substantive
statutory law. State v. Steinert ……………………………….…………….. 342*
CRIMINAL LAW:
Absent Illegal Sentence Claim—Lack of Jurisdiction by Appellate
Court to Review Agreement Approved by Sentencing Court. Absent a
valid illegal sentence claim under K.S.A. 2022 Supp. 22-3504, an appel-
late court lacks jurisdiction to review a sentence resulting from an agree-
ment between the State and the defendant that the sentencing court ap-
proves on the record. State v. Johnson ………………...…………….. 458*
Aggravated Arson Charge—No Double Jeopardy Violation When Con-
victed on Multiple Counts. A defendant charged with aggravated arson
committed under K.S.A. 2022 Supp. 21-5812(b)(1)—that is, arson commit-
ted upon a property in which there is a person—does not suffer a double
jeopardy violation when convicted on multiple counts arising from damage
by fire to separate apartments, each with a person inside.
State v. Buchanan …………………………………………………….. 443*
Application of Traditional Canon of Statutory Construction to Stat-
ute—Intent of Legislature to Tie Single Unit of Prosecution to Multiple
317 KAN. SUBJECT INDEX XIV
PAGE
Items of Paraphernalia. Applying traditional canons of statutory construc-
tion to K.S.A. 2016 Supp. 21-5709(b), we hold the Legislature intended to
tie a single unit of prosecution to multiple items of paraphernalia in indeter-
minate numbers. State v. Eckert ………………………...………………. 21
Challenge to Constitutional Validity of Waiver— Outside Definition of
Illegal Sentence. A claim challenging the constitutional validity of a waiver
relinquishing the right to have a jury determine the existence of upward de-
parture aggravating factors falls outside the definition of an illegal sentence,
overruling State v. Duncan, 291 Kan. 467, 472-73, 243 P.3d 338 (2010).
State v. Johnson ……………………………………………………… 458*
Challenge to Restitution Order—Burden of Proof on Defendant to Show
Restitution Is Unworkable. When a defendant challenges the workability of res-
titution, the burden of proof lies with the defendant to show compelling circum-
stances that would render restitution unworkable, either in whole or in part. To
sustain that burden, defendants must generally present evidence of their inability
to pay when the financial obligation is due. State v. Taylor ………...……….. 364*
Claims of Multiplicity—Two Components to Inquiry. When analyzing
claims of multiplicity, the overarching inquiry is whether the convictions
are for the same offense. There are two components to this inquiry, both of
which must be met for there to be a double jeopardy violation: (1) Do the
convictions arise from the same conduct? and (2) By statutory definition are
there two offenses or only one? State v. Eckert …………………………. 21
Compulsion Defense—Application—Instruction Not Warranted When
Coercion Not Continuous. Under a compulsion defense, a person is not
guilty of a crime other than murder or voluntary manslaughter because of
conduct the person performs under the compulsion or threat of the imminent
infliction of death or great bodily harm. The defense applies only if such
person reasonably believes that death or great bodily harm will be inflicted
upon such person or upon such person's spouse, parent, child, brother, or
sister if such person does not perform such conduct. The coercion or duress
must be present, imminent, and impending and cannot be invoked by some-
one who had a reasonable opportunity to avoid doing the thing, or to escape.
Additionally, a compulsion defense instruction is not warranted when the
coercion is not continuous. State v. Lowry ……………….…………….. 89
Defective Complaint Claim—Not Properly Raised in Motion to Correct
Illegal Sentence. Defective complaint claims are not properly raised in a
motion to correct an illegal sentence under K.S.A. 2022 Supp. 22-3504.
State v. Deck …………………………………………………………… 101
Defendant's Incriminating Statements to Law Enforcement – Condi-
tions Considered in Determining Voluntariness of Statement. A defend-
ant's incriminating statements to law enforcement are not involuntary
simply because the defendant was tired or under the influence of drugs. Any
317 KAN. SUBJECT INDEX XV
PAGE
such condition must have rendered the defendant confused, unable to un-
derstand, unable to remember what had occurred, or otherwise unable to
knowingly and voluntarily waive the right to remain silent.
State v. Spencer ……………………………………………………...… 295
— Determination of Voluntariness – Two-Step Standard of Review. An
appellate court reviews a district court's determinations about the voluntar-
iness of a defendant's incriminating statements to law enforcement by using
a two-step standard of review. First, the appellate court decides whether
substantial competent evidence supports the factual underpinnings of the
district court's decision. Second, the reviewing court views the district
court's ultimate legal conclusion drawn from those facts de novo. In this
process, the appellate court must not reweigh evidence or reassess witness
credibility. State v. Spencer ………………………………...……..…… 295
— State's Burden of Proof. When challenged, the State must prove a de-
fendant voluntarily made incriminating statements to law enforcement by a
preponderance of the evidence based on the totality of the circumstances
involved. State v. Spencer ……………………………….……..……… 295
Determination of Appropriate Unit of Prosecution—Statutory Defini-
tion of the Crime—Nature of the Prohibited Conduct Is Key. The stat-
utory definition of the crime determines what the Legislature intended as
the allowable unit of prosecution. There can be only one conviction for each
allowable unit of prosecution. The determination of the appropriate unit of
prosecution is not necessarily dependent on whether there is a single phys-
ical action or a single victim. Rather, the key is the nature of the conduct
proscribed. State v. Eckert ………………………………………………. 21
District Court's Denial of Motion to Withdraw Plea—Abuse of Discre-
tion Appellate Review. We review a district court's decision to deny a mo-
tion to withdraw a guilty or no contest plea for an abuse of discretion. A
judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanci-
ful, or unreasonable, i.e., if no reasonable person would take the view
adopted by the district court; (2) it is based on an error of law, i.e., if the
discretion is guided by an erroneous legal conclusion; or (3) it is based on
an error of fact, i.e., substantial competent evidence does not support a fac-
tual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. State v. Bilbrey ……………..………………………. 57
Illegal-Sentence Claim May Be Raised First Time on Appeal. A challenge to
the classification of a prior conviction and the resulting criminal-history score pre-
sents an illegal-sentence claim that may be raised for the first time on appeal.
State v. Steinert ……………………………………………….…….…….. 342*
Motion to Correct Illegal Sentence—File on Direct Appeal. A defendant may
file a motion to correct an illegal sentence under K.S.A. 2022 Supp. 22-3504(a) in
an appellate court while on direct appeal. State v. Steinert ………...….…….. 342*
317 KAN. SUBJECT INDEX XVI
PAGE
New Rule for Conducting Criminal Prosecutions—Application. A new rule
for conducting criminal prosecutions is to be applied to all cases pending on direct
review or not yet final. State v. Steinert ………………………...…….…….. 342*
Restitution Statute—Order Imposing Restitution Is the Rule—Finding that
Restitution Is Unworkable Is the Exception. Kansas' criminal restitution statute
makes clear that an order imposing restitution is the rule and a finding that restitu-
tion is unworkable is the exception. State v. Taylor ……………………….... 364*
Restitution Statute Provides Sentencing Court Shall Order Restitution
for Damage or Loss Caused by Crime—Restitution Due Immediately—
Exceptions. Kansas' criminal restitution statute, K.S.A. 2022 Supp. 21-
6604(b)(1), provides that a sentencing court shall order restitution, includ-
ing damage or loss caused by the defendant's crime. Such restitution shall
be due immediately unless: (1) the sentencing court orders that the defend-
ant be given a specified time to pay or be allowed to pay in specified install-
ments; or (2) the sentencing court finds compelling circumstances that
would render restitution unworkable, either in whole or in part.
State v. Taylor …………………………………………..……………. 364*
Sentencing—Classification of Prior Out-of-State Felony under Statute. Un-
der K.S.A. 2022 Supp. 21-6811(e)(3)(B)(iii), a prior out-of-state felony must be
classified as a nonperson felony if the elements of the out-of-state offense do not
require proof of any of the circumstances listed in subsections (B)(i) or (ii).
State v. Busch …………………………………………………………….. 308*
— Presentencing Investigation Report May be Considered Regarding Of-
fender's Criminal History. Under K.S.A. 2021 Supp. 21-6814(b), a presentence
investigation report may be considered at sentencing by the district court to deter-
mine whether the State's burden of proof has been satisfied regarding an offender's
criminal history. State v. Busch …………………………...……………….. 308*
— Sentencing Court Retains Jurisdiction to Correct Illegal Sentence or Cler-
ical Error.
Under K.S.A. 2022 Supp. 21-6820(i), a sentencing court retains juris-
diction to correct an illegal sentence or clerical error under K.S.A. 22-3504 irre-
spective of a defendant's appeal. State v. Steinert …………………….…….. 342*
— Unsworn Responses May Be Considered by District Court. While
sworn testimony may be more credible than unsworn responses, a district
court is not precluded from considering—and even relying on—the re-
sponses it has elicited at sentencing. State v. Taylor ………………….. 364*
Successive Motion to Correct Illegal Sentence—Application of Res Ju-
dicata. Res judicata bars a defendant from raising the same claim in a sec-
ond or successive motion to correct an illegal sentence under K.S.A. 2022
Supp. 22-3504, unless subsequent developments in the law shine new light
on the original question of whether the sentence was illegal when pro-
nounced. State v. Moncla …………………………………………….. 413*
— Party has Burden of Proof to Show Subsequent Development in Law. A
party filing a successive motion to correct an illegal sentence bears a threshold
317 KAN. SUBJECT INDEX XVII
PAGE
burden to prove that a subsequent development in the law undermines the earlier
merits determination. A successive motion that merely seeks a second bite at the
illegal sentence apple is susceptible to dismissal according to our longstanding,
common-law preclusionary rules. State v. Moncla …………………...……. 413*
Sufficiency of Evidence Challenge—Appellate Review. When the suffi-
ciency of the evidence is challenged in a criminal case, appellate courts re-
view the evidence in a light most favorable to the State to determine whether
a rational fact-finder could have found the defendant guilty beyond a rea-
sonable doubt. Appellate courts do not reweigh evidence, resolve eviden-
tiary conflicts, or weigh in on witness credibility.
State v. Buchanan …………………………………………………….. 443*
Untimely Motion for New Trial—May Be Summarily Denied if Deter-
mined that Movant Not Entitled to Relief. A district court judge may
summarily deny an untimely motion for new trial based on dissatisfaction
with counsel without appointing counsel if the judge determines from the
motion, files, and records that the movant is not entitled to relief.
State v. Buchanan …………………………………………………….. 443*
DIVORCE:
Division of Retirement Account—Judgment Subject to Dormancy If Quali-
fies as Final Determination of Parties' Interests. A district court's division of a
retirement account in a divorce proceeding constitutes a judgment subject to dor-
mancy under K.S.A. 2022 Supp. 60-2403 when the division order qualifies under
K.S.A. 2022 Supp. 60-254(a) as a final determination of the parties' interests in the
marital estate. In re Marriage of Holliday ………………………………… 469*
— In re Marriage of Shafer ………………………………..………… 481*
K.S.A. 60-260 Not Applicable When Movant Requests to Clarify Orig-
inal Property Division Order. The relief from judgment statute, K.S.A.
2022 Supp. 60-260, is not applicable when a movant merely requests to
clarify the original property division order that does not require any sub-
stantive change to the order. In re Marriage of Shafer …..…………… 481*
Statutory Tolling Provision Prevents Division of Interests in KPERS
Retirement Account Until Benefits are Payable. K.S.A. 2022 Supp. 60-
2403(c)'s tolling provision prevents a divorce decree dividing the parties'
interests in a retirement account with the Kansas Public Employee Retire-
ment System from becoming dormant until benefits become payable to the
plan member. In re Marriage of Holliday …………………..……….. 469*
EMINENT DOMAIN:
Eminent Domain Procedure Act Limits Judicial Review in Appeals to
Just Compensation under Statute. The Eminent Domain Procedure Act,
K.S.A. 26-501 et seq., limits the scope of judicial review in eminent-domain
317 KAN. SUBJECT INDEX XVIII
PAGE
appeals to the issue of just compensation as defined by K.S.A. 26-513. Re-
location benefits are not a component of just compensation under K.S.A.
26-513. Kansas Fire and Safety Equipment v. City of Topeka ……...… 418*
Failure to Obtain Jury Trial Waiver before Stipulation—Appellate Re-
view. A district court's failure to obtain a constitutionally sufficient jury trial
waiver before a defendant stipulates to an element of a charged crime is
reviewed for constitutional harmless error. State v. Bentley ………...…. 222
First-degree Murder – Premeditation – Proof Established by Direct or
Circumstantial Evidence. As an element of first-degree murder, premedi-
tation is the process of thinking about a proposed killing before engaging in
the homicidal conduct. It need not be proved by direct evidence. It can also
be established by circumstantial evidence, provided any inferences made
from that evidence are reasonable. State v. Spencer ……….………..…. 295
Guilt-based Defense Utilized by Defendant's Counsel—Court Consid-
ers if Defense Was Deficient Performance and Prejudicial. When there
is no indication a defendant objected to a guilt-based defense, a court con-
siders whether counsel's decision to utilize such a defense was deficient per-
formance and prejudicial under the circumstances. There is no general re-
quirement that counsel first obtain express approval from the defendant.
State v. Bentley ……………………………………………….……..…. 222
Illegal-Sentence Claim May Be Raised First Time on Appeal. A challenge to
the classification of a prior conviction and the resulting criminal-history score pre-
sents an illegal-sentence claim that may be raised for the first time on appeal.
State v. Steinert ……………………………………...…………………… 342*
Journal Entry of Judgment—Correction by Nunc Pro Tunc Order. A
journal entry of judgment may be corrected at any time by a nunc pro tunc
order, which is appropriate for correcting arithmetic or clerical errors aris-
ing from oversight or omission. If there is no arithmetic or clerical error
arising from oversight or omission, a nunc pro tunc order is not appropriate.
State v. Turner ……………………………………………...………….. 111
Motion to Correct Illegal Sentence—File on Direct Appeal. A defendant may
file a motion to correct an illegal sentence under K.S.A. 2022 Supp. 22-3504(a) in
an appellate court while on direct appeal. State v. Steinert ………………….. 342*
Multiplicity—Charging a Single Offense in Several Counts of Complaint—
Prohibited by Double Jeopardy Clause and Section 10. Multiplicity is the
charging of a single offense in several counts of a complaint or information. The
principal danger of multiplicity is that it creates the potential for multiple punish-
ments for a single offense, which is prohibited by the Double Jeopardy Clauses of
the Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights. State v. Eckert ……….………………………..…. 21
Multiplicity Claims—Double Jeopardy Violation—Test for Determination.
When analyzing whether sentences relating to two convictions that arise from uni-
tary conduct result in a double jeopardy violation, the test to be applied depends
317 KAN. SUBJECT INDEX XIX
PAGE
on whether the convictions arose from the same statute or multiple statutes. If the
double jeopardy issue arises from convictions for multiple violations of a single
statute, the unit of prosecution test is applied. If the double jeopardy issue arises
from multiple convictions of different statutes, the strict-elements test is applied.
State v. Eckert …………………………………………………………..….... 21
Multiplicity Questions—Appellate Review. Questions involving multiplicity
are questions of law subject to unlimited appellate review. State v. Eckert …..... 21
New Rule for Conducting Criminal Prosecutions—Application. A new rule
for conducting criminal prosecutions is to be applied to all cases pending on direct
review or not yet final. State v. Steinert …………….…………...………….. 342*
.
No Alternative Means of Committing Computer Crime in K.S.A. 2022
Supp. 21-5839(a)(2). K.S.A. 2022 Supp. 21-5839(a)(2) does not contain
alternative means of committing a computer crime because both clauses in
K.S.A. 2022 Supp. 21-5839(a)(2) —executing a scheme "with the intent to
defraud" and obtaining money "by means of false or fraudulent pretense or
representation"—require an individual to engage in fraudulent behavior to
induce a condition to facilitate theft. State v. Smith ………………..……130
No Implied Private Right of Action under K.S.A. 26-518. K.S.A. 26-518
does not create an implied private right of action allowing displaced persons
to sue a condemning authority for relocation benefits and assistance in a
civil cause of action filed directly in district court.
Kansas Fire and Safety Equipment v. City of Topeka ………….…...… 418*
Possession of Methamphetamine—Larger Amount Does Not Preclude Guilt
for Possession of Smaller Amount under Statute. Possession of a larger amount
of methamphetamine that could establish guilt under K.S.A. 2022 Supp. 21-
5705(d)(3)(C) does not preclude guilt for possessing a smaller amount under
K.S.A. 2022 Supp. 21-5705(d)(3)(A) or (B). State v. Bentley …………..…… 222
Requirement of Sufficient Jury Trial Waiver before Stipulation to Ele-
ment of Crime. A district court must obtain a constitutionally sufficient
jury trial waiver before a defendant stipulates to an element of a charged
crime. State v. Bentley ………………………………………...……….. 222
Restitution Statute—Order Imposing Restitution Is the Rule—Finding that
Restitution Is Unworkable Is the Exception. Kansas' criminal restitution statute
makes clear that an order imposing restitution is the rule and a finding that restitu-
tion is unworkable is the exception. State v. Taylor ………………...……… 364*.
Restitution Statute Provides Sentencing Court Shall Order Restitution
for Damage or Loss Caused by Crime—Restitution Due Immediately—
Exceptions. Kansas' criminal restitution statute, K.S.A. 2022 Supp. 21-
6604(b)(1), provides that a sentencing court shall order restitution, includ-
ing damage or loss caused by the defendant's crime. Such restitution shall
be due immediately unless: (1) the sentencing court orders that the defend-
317 KAN. SUBJECT INDEX XX
PAGE
ant be given a specified time to pay or be allowed to pay in specified install-
ments; or (2) the sentencing court finds compelling circumstances that
would render restitution unworkable, either in whole or in part.
State v. Taylor …………………………………………………..……. 364*
Sentencing—Appellate Review of Departure Sentence. An appellate
court may affirm a departure sentence as long as one or more of the factors
relied on by the sentencing court was substantial and compelling.
State v. Newman-Caddell …………………………………….…..……. 251
— Application of Extreme Sexual Violence Departure Factor Not an
Error. A court does not err in applying the extreme sexual violence depar-
ture factor in K.S.A. 2022 Supp. 21-6815(c)(2)(F)(i) when sentencing a de-
fendant for an aggravated kidnapping involving a nonconsensual act of sex-
ual intercourse or sodomy. State v. Newman-Caddell ……….…..……. 251
— Classification of Prior Out-of-State Felony under Statute. Under K.S.A.
2022 Supp. 21-6811(e)(3)(B)(iii), a prior out-of-state felony must be classified as
a nonperson felony if the elements of the out-of-state offense do not require proof
of any of the circumstances listed in subsections (B)(i) or (ii).
State v Busch ……………………………………..………………………. 308*
— Determining Appropriate Amount of Restitution. The appropriate amount
of restitution is that which compensates the victim for the actual damage or loss
caused by the defendant's crime. Substantial competent evidence must support
every restitution award. State v. Smith ……………………….……..……….. 130
.
— Motion to Correct Illegal Sentence—Not Used for Constitutional
Due Process Claim. A motion to correct an illegal sentence may not be
used to litigate a constitutional due process claim.
State v. Newman-Caddell ………………………………………...……. 251
— Presentencing Investigation Report May be Considered Regarding Of-
fender's Criminal History. Under K.S.A. 2021 Supp. 21-6814(b), a presentence
investigation report may be considered at sentencing by the district court to deter-
mine whether the State's burden of proof has been satisfied regarding an offender's
criminal history. State v Busch ……………………………………………. 308*
— Scoring Pre-1993 Out-of-State Convictions in 2011. In 2011, the law
in Kansas required a district court to score pre-1993 out-of-state convictions
according to the comparable Kansas offense. State v. Johnson ………... 283
— Sentencing Court Retains Jurisdiction to Correct Illegal Sentence or Cler-
ical Error.
Under K.S.A. 2022 Supp. 21-6820(i), a sentencing court retains juris-
diction to correct an illegal sentence or clerical error under K.S.A. 22-3504 irre-
spective of a defendant's appeal. State v. Steinert ………………..…………. 342*
— Unsworn Responses May Be Considered by District Court. While
sworn testimony may be more credible than unsworn responses, a district
court is not precluded from considering—and even relying on—the re-
sponses it has elicited at sentencing. State v. Taylor ……….…………. 364*
317 KAN. SUBJECT INDEX XXI
PAGE
Statute Provides Mandatory Presumption of Intent to Distribute if Pos-
sess Specific Quantities. K.S.A. 2022 Supp. 21-5705(e) provides a manda-
tory, albeit rebuttable, presumption of a defendant's intent to distribute when
that defendant is found to have possessed specific quantities of a controlled
substance. State v. Strong …………………………………..………..… 197
Successive Motion to Correct Illegal Sentence—Application of Res Ju-
dicata. Res judicata bars a defendant from raising the same claim in a sec-
ond or successive motion to correct an illegal sentence under K.S.A. 2022
Supp. 22-3504, unless subsequent developments in the law shine new light
on the original question of whether the sentence was illegal when pro-
nounced. State v. Moncla ……………………………….……………. 413*
— Party has Burden of Proof to Show Subsequent Development in
Law. A party filing a successive motion to correct an illegal sentence bears
a threshold burden to prove that a subsequent development in the law un-
dermines the earlier merits determination. A successive motion that merely
seeks a second bite at the illegal sentence apple is susceptible to dismissal
according to our longstanding, common-law preclusionary rules.
State v. Moncla ………………………………………….……………. 413*
Unit of Prosecution Is Ambiguous in K.S.A. 2016 Supp. 21-5709(b)—Appli-
cation of Traditional Canons of Statutory Construction. K.S.A. 2016 Supp.
21-5709(b) is ambiguous regarding the unit of prosecution, so application of tradi-
tional canons of statutory construction is necessary to discern its meaning.
State v. Eckert ……………………………………...………………..………. 21
Withdrawal of Plea—Competence of Counsel Considered under First Factor
under State v. Edgar—Post-Sentencing Standard and Pre-Sentencing Legal
Standard. The applicable legal standard when considering the competence of
counsel for purposes of withdrawing a plea under the first factor under State v.
Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), is well established. When a defend-
ant moves to withdraw a plea after sentencing, a trial court must use the Sixth
Amendment constitutional ineffective assistance standard set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to consider
whether the defendant was represented by competent counsel. But when the same
motion is made before sentencing, a lower standard of lackluster advocacy may
constitute good cause to support the presentence withdrawal of a plea.
State v. Bilbrey ……………..……………………………...………...………. 57
— Determination Whether Good Cause—Three Factors. When determining
whether a defendant has demonstrated good cause, district courts generally look to
the following three factors: (1) whether the defendant was represented by compe-
tent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly
taken advantage of; and (3) whether the plea was fairly and understandingly made.
State v. Bilbrey ……………..………………………...……..………………. 57
Withdrawal of Plea Before Sentencing for Good Cause. Before sentencing, a
defendant may withdraw his or her plea for good cause shown.
State v. Bilbrey ……………..………………………...……...………………. 57
317 KAN. SUBJECT INDEX XXII
PAGE
EVIDENCE:
Inferences and Presumptions—Inference Is Conclusion Drawn from Facts—
Presumption Is Rule of Law. There is a legally significant difference between
inferences and presumptions. An inference is a conclusion rationally drawn from
a proven fact or set of facts. In contrast, a presumption is a rule of law that requires
the fact-finder to draw a certain conclusion from a proven fact or set of facts in the
absence of contrary evidence. State v. Slusser ……………….…..………….. 174
Presumptions. Because presumptions direct jurors to draw certain conclu-
sions once the State has satisfied a certain evidentiary predicate, they have
the potential to relieve the State of its burden to prove the defendant's guilt
beyond a reasonable doubt and shift the burden onto the defendant to prove
his or her innocence. State v. Slusser ……………………………..……….. 174
GARNISHMENT:
Appeal from Garnishment Award—Appellate Review. On appeal from
a garnishment award, an appellate court conducts a mixed review of law
and fact. Under that framework, an appellate court reviews the district
court's legal conclusions independently, with no required deference to the
district court. But review of the district court's factual findings is deferential.
The appellate court must accept those findings if they are supported by sub-
stantial competent evidence. Granados v. Wilson …………….………… 34
INSURANCE:
Insured's Duty to Act with Reasonable Care or Duty to Act in Good
Faith—Question for Trier of Fact. Generally, a court commits legal error
by articulating the insurer's implied contractual duty to act with reasonable
care or the implied contractual duty to act in good faith in a more particu-
larized, fact-specific manner because it conflates the question of duty, a
question of law, with the question of breach, a question typically reserved
for the trier of fact. Granados v. Wilson ………………………………… 34
Insurer's Duty to Its Insured in Kansas—Failure to Fulfill Contractual
Duties Results in Action for Breach of Contract—Four Elements. An
insurer's failure to fulfill its implied contractual duties to act with reasonable
care and in good faith gives rise to an action for breach of contract, rather
than an action in tort, because an insurance policy is typically a contract.
Even so, Kansas law applies tort concepts to evaluate whether an insurer
has breached the implied contractual terms to act with reasonable care and
in good faith. Thus, plaintiffs asserting such claims must prove four well-
known elements: a duty owed to the plaintiff; a breach of that duty; causa-
tion between the breach of duty and the injury to the plaintiff; and damages
suffered by the plaintiff. Granados v. Wilson …………………………… 34
Liability for Judgment Exceeding Coverage Limits—Requirement of Causal
Link between Insurer's Breach of Duty and Excess Judgment. For an insurer
317 KAN. SUBJECT INDEX XXIII
PAGE
to be liable for a judgment exceeding the coverage limits under the policy of insur-
ance, there must be a causal link between the insurer's breach of duty and the ex-
cess judgment. Granados v. Wilson ……………………….………………… 34
Third-Party Liability Claims—Insurer Owes Two Legal Duties to Its
Insured—Duty to Act with Reasonable Care and Duty to Act in Good
Faith. Under established Kansas precedent, an insurer owes its insured two
legal duties when handling third-party liability claims against the insured:
the duty to act with reasonable care and the duty to act in good faith. These
two legal duties are implied contractual terms incorporated into liability in-
surance policies in our state. Granados v. Wilson ……………………… 34
JUDGMENTS:
Dormancy Period under Statute Does Not Run if Judgment is Stayed
or Prohibited. The dormancy period under K.S.A. 2022 Supp. 60-2403(c)
does not run "during any period in which the enforcement of the judgment
by legal process is stayed or prohibited." In re Marriage of Holliday …469*
JURISDICTION:
Supreme Court has Jurisdiction in Appeals from Judgments Regard-
ing Restitution in First-degree Murder Convictions. Under K.S.A. 60-
2101(b) and K.S.A. 2022 Supp. 22-3601, the Kansas Supreme Court has
jurisdiction over appeals from district court judgments upholding or revers-
ing the validity of restitution orders imposed in first-degree murder convic-
tions. State v. Bailey ………………………………………………….. 487*
MARRIAGE:
Common-law Marriage—Burden of Proof. The party asserting a com-
mon-law or consensual marriage bears the burden of proving the existence
of the marriage.
In re Common-Law Marriage of Heidkamp and Ritter ……….....…….. 125
— Elements. The essential elements of a common-law marriage in Kansas
are: (1) capacity of the parties to marry; (2) a present marriage agreement
between the parties; and (3) a holding out of each other as husband and wife
to the public.
In re Common-Law Marriage of Heidkamp and Ritter ………..…..…... 125
Jurisdiction of Supreme Court—Determination of Common-law Mar-
riage. The Kansas Supreme Court has jurisdiction to review a district court
determination that a couple had a common-law marital relationship and to
either approve or disapprove that determination.
In re Common-Law Marriage of Heidkamp and Ritter …...…..……….. 125
MOTOR VEHICLES:
Driving While License Suspended—Proof Notice Mailed to Last
Known Address of Licensee—Proof of Receipt Not Required. In a pros-
ecution under K.S.A. 8-262, for driving while one's license is suspended,
317 KAN. SUBJECT INDEX XXIV
PAGE
the State must offer proof that a copy of the order of suspension, or written
notice of that action, was mailed to the last known address of the licensee
according to the division's records. The State does not have to prove the
licensee actually received the notice, had actual knowledge of the revoca-
tion, or had specific intent to drive while the license was suspended.
State v. Bentley ………………………………………………..…………… 222
KDR Granted Subject Matter Jurisdiction from K.S.A. 8-1002(f)—Suspen-
sion of Driving Privileges. The plain language of K.S.A. 8-1002(f) grants the
Kansas Department of Revenue subject matter jurisdiction to review an officer's
certification and notice of suspension upon receipt and, if it satisfies the require-
ments of K.S.A. 8-1002(a), to suspend an individual's driving privileges. If the cer-
tification and notice does not satisfy the requirements of K.S.A. 8-1002(a), the
Kansas Department of Revenue must dismiss the administrative proceeding.
Fisher v. Kansas Dept. of Revenue …………………………………..……... 119
Subject Matter Jurisdiction of KDR Not Impaired by Officer's Error in Fill-
ing Out Information. An officer's error in filling out information required by
K.S.A. 8-1002(d) on a certification and notice of suspension does not impair the
Kansas Department of Revenue's subject matter jurisdiction.
Fisher v. Kansas Dept. of Revenue ………………………………..………... 119
Suspension of Driving License— Statutory Compliance if Defendant
has Actual Knowledge. When a defendant has actual knowledge that his
or her license has been suspended, the State is not required to present direct
evidence that there has been compliance with K.S.A. 8-255(d).
State v. Bentley ………………………………………………………..…… 222
OPEN RECORDS ACT:
Statute Requires Public Agency to Provide Record in Format in Which
It Maintains the Record.
The plain language of K.S.A. 45-219(a) requires
a public agency, upon request, to provide a copy of a public record in the
format in which it maintains that record.
Roe v. Phillips County Hospital ………………………….………………. 1
STATUTES:
Challenge to Constitutionality of Statute—Judicial Review by Courts—
Standing Is Requirement for Case-or-Controversy and Component of
Court's Subject Matter Jurisdiction. While courts generally have authority to
determine whether a statute is unconstitutional, this power of judicial re-
view is not unlimited. The separation of powers doctrine embodied in the
Kansas constitutional framework requires the court exercise judicial review
only when the constitutional challenge is presented in an actual case or con-
troversy between the parties. Under this case-or-controversy requirement,
parties must show (among other factors) that they have standing. Standing
is the right to make a legal claim. To have such a right, a party generally
must show an injury in fact; absent that injury, courts lack authority to en-
tertain the party's claim. In this respect, standing is both a requirement for a
317 KAN. SUBJECT INDEX XXV
PAGE
case-or-controversy, i.e., justiciability, and a component of this court's sub-
ject matter jurisdiction. State v. Martinez ……………………..…….…. 151
Challenge to Constitutionality of Statute—Requirement of Standing. To have
an injury in fact sufficient to raise a constitutional challenge to a statute, a party
must show that the statute affected the party's rights. A party has standing to
challenge the constitutionality of a statute only when it directly affects the party's
rights. State v. Martinez ………………………………………..………. 151
Constitutional Challenge to Statute—Party Must Have Standing. To establish
an injury in fact sufficient to raise a constitutional challenge to a statute, a party
must show that the statute affected the party's rights. Generally, if there is no
constitutional defect in the application of the statute to a litigant, the litigant
does not have standing to argue that it would be unconstitutional if applied
to third parties in hypothetical situations. State v. Strong …….……..…. 197
Construction by Courts—Avoid Unreasonable Results. Courts must construe
a statute to avoid unreasonable or absurd results. State v. Eckert ………...…. 21
Determination Whether Statute Implies Private Right of Action—Two-
Part Test. Kansas courts generally follow a two-part test to determine
whether a statute implies a private right of action. First, the party must show
that the statute was designed to protect a specific group of people rather than
to protect the general public. Second, the court must review legislative his-
tory to determine whether a private right of action was intended.
Kansas Fire and Safety Equipment v. City of Topeka …….…………... 418*
Interpretation –Question of Law—Appellate Review. Statutory interpretation
presents a question of law over which appellate courts have unlimited review.
State v. Steinert ……………………………………………………...……. 342*
Interpretation of Statute—Plain and Unambiguous Language Requires
Court Consider Intent of Legislature.
In interpreting a statute, courts begin
with its plain language. 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. The court need not apply
its canons of statutory construction or consult legislative history if a statute
is plain and unambiguous. Roe v. Phillips County Hospital …………..…. 1
Language of Statute Is Clear—Courts Consider Provisions of Act In
Pari Materia to Reconcile. Even when the language of a statute is clear,
courts still consider various provisions of an act in pari materia to reconcile
and bring those provisions into workable harmony, if possible.
Roe v. Phillips County Hospital ………………………..………………….1
Rule of Lenity—Application When Criminal Statute Is Ambiguous.
The rule of lenity is a canon of statutory construction applied when a crim-
inal statute is ambiguous to construe the uncertain language in the accused's
favor. State v. Eckert ……………………………………………………. 21
317 KAN. SUBJECT INDEX XXVI
PAGE
Statutory Construction—Intent of Legislature Governs. The most fun-
damental rule of statutory construction is that the intent of the Legislature
governs if that intent can be ascertained. In ascertaining this intent, a court
begins with the plain language of the statute, giving common words their
ordinary meaning. When a statute is plain and unambiguous, a court should
not speculate about the legislative intent behind that clear language, and it
should refrain from reading something into the statute that is not readily
found in its words. But if a statute's language is ambiguous, a court may
consult canons of construction to resolve the ambiguity. State v. Eckert...21
SUMMARY JUDGMENT:
Appellate Review of District Court's Grant of Summary Judgment Is
De Novo.
When the parties agree that the facts are undisputed, an appellate
court reviews a district court's decision to grant summary judgment de novo.
Roe v. Phillips County Hospital …………………………….……………. 1
TRIAL:
Admission of Gruesome Photographs—Error to Admit if Only to In-
flame Jury—Determination Whether Risk of Undue Prejudice Out-
weighs Its Probative Value—Appellate Review. A trial judge errs by ad-
mitting gruesome photographs that only inflame the jury. But gruesome
photographs are not automatically inadmissible. Indeed, gruesome crimes
result in gruesome photographs. Faced with an objection, rather than auto-
matically admit or deny admission of a gruesome photograph, a trial judge
must weigh whether the photograph presents a risk of undue prejudice that
substantially outweighs its probative value. On appeal, appellate court's re-
view a trial judge's assessment for an abuse of discretion, often asking
whether the judge adopted a ruling no reasonable person would make.
State v. Lowry ……………………………………………………..…….89
Cumulative Error Rule—Application. Cumulative trial errors may re-
quire reversal when, under the totality of the circumstances, the combined
errors substantially prejudice a defendant and deny a fair trial. The cumula-
tive error rule does not apply if there are no errors or only a single error.
State v. Lowry …………………………….………………………..…….89
Effect of Trial Errors May Require Reversal of Conviction—Totality
of Circumstances Must Establish Prejudice—Appellate Review of
Cumulative Effect of Errors. The effect of separate trial errors may
require reversal of a defendant's conviction when the totality of the
circumstances establishes that the defendant was substantially prejudiced
by the errors and denied a fair trial. In assessing the cumulative effect of the
errors, appellate courts examine the errors in the context of the entire record,
considering how the trial judge dealt with the errors as they arose; the nature
and number of errors and their interrelationship, if any; and the overall
strength of the evidence. If any of the errors being aggregated are
constitutional, their effect must be harmless beyond a reasonable doubt.
State v. Martinez ……………………………………………..………... 151
317 KAN. SUBJECT INDEX XXVII
PAGE
Invited-Error Doctrine—Application—Appellate Review. The invited-error
doctrine precludes a party who has led the district court into error from
complaining of that error on appeal. In determining whether the invited-error
doctrine applies, appellate courts must carefully consider the party's actions and
the context in which those actions occurred to determine whether that party in fact
induced the district court to make the alleged error. State v. Martinez ….....….. 151
.
— State v. Slusser ………………………………………………..……. 174
Jury Instruction—Legally Appropriate Jury Instruction. To be legally
appropriate, a jury instruction must fairly and accurately reflect the applica-
ble law. State v. Strong …………………………………..…………..… 197
— When Legally Inappropriate. A jury instruction is legally inappropriate if it
fails to accurately state the applicable law. State v. Martinez ……..……….. 151
Jury Instructions—Determination Whether Voluntary Manslaughter In-
struction Is Factually Appropriate. A voluntary manslaughter instruction is fac-
tually appropriate only if some evidence, viewed in a light most favorable to the
defendant, shows an adequate provocation that deprives a reasonable person of
self-control and causes that person to act out of passion, rather than reason. A sud-
den quarrel, or any unforeseen angry altercation, can fall into the definition of heat
of passion and thus be sufficient provocation. But ongoing and protracted interac-
tions do not usually provide factual support for a voluntary manslaughter instruc-
tion. State v. Lowry ……………………………………………………….89
— Failure to Object to Instruction Does Not Trigger Invited-Error
Doctrine. In the context of jury instructions, the mere failure to object to an
instruction does not trigger the invited-error doctrine. And the doctrine does
not automatically apply every time a party requests an instruction at trial
but then, on appeal, claims the district court erred by giving it. But applica-
tion of the doctrine is appropriate when the party proposing an instruction
before trial could have ascertained the instructional error at that time.
State v. Slusser …………………………………...………..………..… 174
— Unpreserved Instructional Error—Appellate Review. An appellate court
reviews an unpreserved instructional error for clear error. Under that standard, the
party asserting error has the burden to firmly convince the appellate court that the
jury would have reached a different verdict if the instructional error had not
occurred. State v. Martinez ………………………………………..………... 151
Lesser Included Offense Instruction—Appellate Review. A lesser in-
cluded offense instruction is factually appropriate if an appellate court
would uphold a conviction for the lesser offense in the face of a challenge
to the sufficiency of the evidence. State v. Martinez ……………...……. 151
— Lesser Included Offense Instruction Must Be Legally and Factually
Appropriate. Even if a lesser included offense instruction is legally appro-
priate, it must also be factually appropriate. A trial judge's failure to give a
317 KAN. SUBJECT INDEX XXVIII
PAGE
lesser included offense instruction is not error if the instruction falls short
on either or both the factual and legal appropriateness requirements.
State v. Lowry ……………………………………………...…………….89
— Mandatory Rebuttable Presumption under Statute. An instruction
permitting the jury to infer a defendant intended to distribute drugs based
on a certain amount of drugs in the defendant's possession is not legally
appropriate because it does not reflect the mandatory rebuttable presump-
tion in K.S.A. 2022 Supp. 21-5705(e). State v. Bentley ……………...... 222
Prosecutor's Latitude in Closing Arguments. Prosecutors generally have
wide latitude in crafting their closing arguments, so long as those arguments
accurately reflect the evidence presented at trial and accurately state the
controlling law. But prosecutors step outside the bounds of proper argument
if they lower the State's burden to prove the defendant's guilt beyond a rea-
sonable doubt or shift the burden onto the defendant.
State v. Slusser ……………………………………………..……..…… 174
Review of Jury Question Submitted during Deliberations—Appellate Review.
An appellate court reviews a district court's response to a question submitted by the
jury during deliberations for abuse of discretion. A district court's response constitutes
an abuse of discretion when it is objectively unreasonable or when the response
includes an error of law or fact. State v. Martinez ………………………..…….. 151
Sufficiency of Evidence Review—Appellate Review. When reviewing the
sufficiency of the evidence supporting a conviction, an appellate court reviews all the
evidence in a light most favorable to the prosecution and decides whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt. The
court does not reweigh evidence, resolve evidentiary conflicts, or reassess witness
credibility. State v. Martinez ……………………………………......……..…. 151
TRUSTS:
Charitable Trust—Supreme Court has Subject Matter Jurisdiction to
Review District Court Order Modifying Charitable Trust. The Kansas
Supreme Court has subject matter jurisdiction to review an uncontested dis-
trict court order retroactively modifying a charitable trust to decide whether
the district court's order should be binding on federal tax authorities under
Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed.
2d 886 (1967). In the Marvin S. Robinson Charitable Trust ………….. 492*
308 SUPREME COURT OF KANSAS VOL. 317
State v. Busch
No. 123,382
STATE OF KANSAS, Appellee, v. ALLEN LEE BUSCH, Appellant.
(528 P.3d 560)
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Sentencing—Classification of Prior Out-of-State Felony un-
der Statute. Under K.S.A. 2022 Supp. 21-6811(e)(3)(B)(iii), a prior out-of-state
felony must be classified as a nonperson felony if the elements of the out-of-state
offense do not require proof of any of the circumstances listed in subsections (B)(i)
or (ii).
2. CRIMINAL LAW—Sentencing—Presentencing Investigation Report May be
Considered Regarding Offender's Criminal History. Under K.S.A. 2021 Supp. 21-
6814(b), a presentence investigation report may be considered at sentencing by the
district court to determine whether the State's burden of proof has been satisfied
regarding an offender's criminal history.
Review of the judgment of the Court of Appeals in an unpublished opinion filed
July 22, 2022. Appeal from Seward District Court; C
LINT B. PETERSON, judge. Opinion
filed May 5, 2023. Judgment of the Court of Appeals affirming the district court is af-
firmed in part and reversed in part. Judgment of the district court is affirmed in part and
vacated in part, and the case is remanded with directions.
Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was
on the brief for appellant.
Russell W. Hasenbank, county attorney, argued the cause, and Derek Schmidt, at-
torney general, was with him on the brief for appellee.
The opinion of the court was delivered by
WILSON, J.: Allen Lee Busch claims that, as a result of errors in
the classification of five of his prior out-of-state convictions, he is serv-
ing an illegal sentence. Under the new statutory test for the classifica-
tion of prior crimes, we agree in part, although not precisely for the
reason Busch articulates. For the reasons we will discuss, we affirm in
part and reverse in part the decision of the Court of Appeals, affirm in
part and vacate in part the judgment of the district court, and remand
the matter to the district court for resentencing.
FACTS AND PROCEDURAL BACKGROUND
In 2019, the State charged Busch with one count each of posses-
sion of methamphetamine, possession of oxycodone, and possession
VOL. 317 SUPREME COURT OF KANSAS 309
State v. Busch
of drug paraphernalia. Busch pleaded no contest to possession of meth-
amphetamine. In exchange, the State recommended probation and dis-
missed the remaining charges.
The State, the district court, and Busch's counsel all received
copies of the court-ordered presentence investigation report (PSI)
before sentencing. Among the 35 prior crimes listed in the report,
the PSI documented the following adult person felonies: three in-
stances of burglary in 1985, one instance of criminal trespass in
1989, and one instance of burglary third degree in 1995, all of
which arose from convictions in New Jersey. In each of these, the
PSI writer had added the term "residential" in parentheses behind
the name of the offense.
At sentencing, neither party challenged any aspect of the PSI,
and Busch himself agreed that he had a criminal history score of
A. The district court granted a dispositional departure to probation
for 18 months with an underlying 40-month prison sentence.
The State moved to revoke Busch's probation in June 2020,
arguing that Busch had failed to report and had failed to refrain
from possessing or consuming alcohol or illegal drugs. At a pro-
bation revocation hearing, Busch stipulated to these violations.
The district court found that the violations were "significant" and
ordered Busch to serve the rest of his underlying sentence. In its
Journal Entry of Probation Revocation, the district court incor-
rectly noted that it revoked Busch's probation because he had "ab-
sconded." Busch then appealed.
On appeal, Busch argued that the State failed to prove his prior
New Jersey convictions were person felonies, thus rendering his
sentence illegal. State v. Busch, No. 123,382, 2022 WL 2904026,
at *2 (Kan. App. 2022). He also claimed the district court abused
its discretion by ordering him to serve his underlying sentence and
pointed out an error in the district court's journal entry of proba-
tion revocation. 2022 WL 2904026, at *4-5. The panel rejected
the first two arguments but agreed that the district court committed
a clerical error by noting that Busch had "absconded" and re-
manded with directions to correct the error. 2022 WL 2904026, at
*5. After reciting the text of the New Jersey burglary statute, the
panel focused on K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)(h) and
K.S.A. 2019 Supp. 21-6814(b):
310 SUPREME COURT OF KANSAS VOL. 317
State v. Busch
"K.S.A. 2019 Supp. 21-6814 addresses the legal bearing that PSI reports
have on sentencing proceedings. Under that statute, 'the summary of the offend-
er's criminal history prepared for the court by the state shall satisfy the state's
burden of proof regarding an offender's criminal history unless the defendant
objects in writing.' So, although the New Jersey statute at issue encompasses
conduct broader than the person crime circumstance listed in K.S.A. 2019 Supp.
21-6811(e)(3)(B)(i)(h), the description of the offense on the PSI clarifies that
Busch's conviction involved a residential burglary. K.S.A. 2019 Supp. 21-
6814(b) does not distinguish between the 'statute' and 'description' columns on
the criminal history worksheet; it covers the entire report. Again, Busch did not
file a written objection to this description of his prior offense, so the State's de-
scription of the New Jersey burglary offense as a residential crime—which
matches the corresponding person crime circumstance—satisfied its burden of
proof.
"The same analysis applies to Busch's criminal trespass conviction. [Cita-
tions omitted.]" 2022 WL 2904026, at *4.
Bush petitioned for review of his illegal sentence and abuse
of discretion claims. We granted review only as to his illegal sen-
tence claim.
ANALYSIS
Bush advances two related arguments challenging the classi-
fication of his four previous New Jersey burglary convictions and
his single New Jersey criminal trespass conviction. First, Bush ar-
gues that the court services officer's "residential" notation beside
his New Jersey convictions on the PSI does not provide substantial
competent evidence to support classifying these convictions as
person felonies. Second, he claims that the panel's decision effec-
tively permitted the district court to engage in unconstitutional
factfinding, in violation of the Sixth Amendment to the United
States Constitution.
Standard of review
"An appellate court reviews a district court's decision that the
State met its burden to prove the classification of a prior convic-
tion for substantial competent evidence." State v. Corby, 314 Kan.
794, 796, 502 P.3d 111 (2022). When a challenge to a criminal
history score involves the interpretation of a statute, the court's
review is unlimited. 314 Kan. at 796.
VOL. 317 SUPREME COURT OF KANSAS 311
State v. Busch
"'The most fundamental rule of statutory construction is that the intent of
the Legislature governs if that intent can be ascertained. In ascertaining this in-
tent, we begin with the plain language of the statute, giving common words their
ordinary meaning. When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind that clear language, and
it should refrain from reading something into the statute that is not readily found
in its words. But if a statute's language is ambiguous, we will consult our canons
of construction to resolve the ambiguity.'
"An apparently clear statute may nevertheless manifest ambiguity when ap-
plied to the particular facts of a case. [Citations omitted.]" State v. Scheuerman,
314 Kan. 583, 587, 502 P.3d 502, cert. denied 143 S. Ct. 403 (2022).
Constitutional overlay
We begin with Busch's "constitutional" argument. We pause
to note that, although Busch styles this claim as a "constitutional
problem," a motion to correct an illegal sentence usually cannot
encompass a constitutional challenge. E.g., State v. R. H., 313
Kan. 699, 702, 490 P.3d 1157 (2021). In any event, Busch essen-
tially argues that his sentence does not conform to K.S.A. 2022
Supp. 21-6811(e)(3)(B)(i)(h)—an argument that, as we have clar-
ified, is a challenge "to the statutory propriety of the classification
at issue—albeit with a thick overlay of constitutional law." State
v. Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016) (Dickey II).
Consequently, Busch's argument remains a valid claim for a mo-
tion to correct an illegal sentence.
Busch's prior out-of-state burglary convictions were nonper-
son felonies.
We next review the relevant provisions of K.S.A. 2022 Supp.
21-6811(e):
"(e)(1) Out-of-state convictions and juvenile adjudications shall be used in clas-
sifying the offender's criminal history.
. . . .
(3) The state of Kansas shall classify the crime as person or nonperson.
. . .
(B) In designating a felony crime as person or nonperson, the felony crime
shall be classified as follows:
(i) An out-of-state conviction or adjudication for the commission of a fel-
ony offense, or an attempt, conspiracy or criminal solicitation to com-
mit a felony offense, shall be classified as a person felony if one or
more of the following circumstances is present as defined by the con-
victing jurisdiction in the elements of the out-of-state offense:
312 SUPREME COURT OF KANSAS VOL. 317
State v. Busch
. . . .
(h) entering or remaining within any residence, dwelling or habitation.
. . . .
(iii) An out-of-state conviction or adjudication for the commission of a fel-
ony offense, or an attempt, conspiracy or criminal solicitation to com-
mit a felony offense, shall be classified as a nonperson felony if the
elements of the offense do not require proof of any of the circumstances
in subparagraph (B)(i) or (ii)." (Emphases added.)
This statute clarifies that the appropriate classification for Busch's
New Jersey crimes as person or nonperson felonies turns on the ele-
ments in New Jersey of each crime. The following statute defined the
elements applicable to Busch's 1985, 1989, and 1995 burglary convic-
tions:
"(a) . . . A person is guilty of burglary if, with purpose to commit an offense therein
he:
(1) Enters a structure, or a separately secured or occupied portion thereof,
unless the structure was at the time open to the public or the actor is
licensed or privileged to enter; or
(2) Surreptitiously remains in a structure or a separately secured or occu-
pied portion thereof knowing that he is not licensed or privileged to do
so.
"(b) Grading. Burglary is a crime of the second degree if in the course of commit-
ting the offense, the actor:
(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threat-
ens to inflict bodily injury on anyone; or
(2) Is armed with or displays what appear to be explosives or a deadly
weapon.
"Otherwise burglary is a crime of the third degree. . . ." N.J. Stat. Ann. § 2C:18-2
(West 1981).
(This version remained in effect from 1981 to 1994. In January 1995,
the New Jersey Legislature amended the statute to include entry into a
"research facility," though this does not affect our analysis. 1995 N.J.
Sess. Law Serv. ch. 20, § 3 [West].) Additionally, N.J. Stat. Ann. §
2C:18-1 (West 1981) defined "structure" at all relevant times to mean
"any building, room, ship, vessel, car, vehicle or airplane, and also
means any place adapted for overnight accommodation of persons, or
for carrying on business therein, whether or not a person is actually
present." Plainly, this definition of "structure" is far broader than the
"residence, dwelling or habitation" criteria set forth in K.S.A. 2022
Supp. 21-6811(e)(3)(B)(i)(h). The elements of the New Jersey crime
are satisfied if a residence is burgled, but they are also satisfied if a car
VOL. 317 SUPREME COURT OF KANSAS 313
State v. Busch
is burgled. In other words, the elements do not require a residence to
be burgled for a valid conviction of burglary.
K.S.A. 2022 Supp. 21-6811(e)(3)(B)(iii) clarifies our course when
an out-of-state statute's definitions of a particular element may broadly
encompass, but not require, proof of a particular fact or circumstance:
"An out-of-state conviction . . . for the commission of a felony offense
. . . shall be classified as a nonperson felony if the elements of the of-
fense do not require proof of any of the circumstances in subparagraph
(B)(i) [burglary of a "residence, dwelling, or habitation] or (ii) [not ap-
plicable]." (Emphasis added.) A close inspection of New Jersey's stat-
ute shows that no version of its elements of burglary requires proof that
the enclosed structure burgled was a "residence, dwelling or habita-
tion." Thus, the plain language of K.S.A. 2022 Supp. 21-
6811(e)(3)(B)(iii) mandates that Busch's New Jersey burglary crimes
must be scored as nonperson felonies. The panel erred by concluding
otherwise, no matter if the State carried its burden of proof by showing
that the facts surrounding Busch's prior burglaries involved residences.
Busch's prior out-of-state criminal trespass conviction was a per-
son felony.
We next consider the defendant's New Jersey conviction for crim-
inal trespass, designated on the PSI as a person felony. Preliminarily,
we reject Busch's claim that the State failed to carry its burden of proof
that this crime involved a residence because a court services officer—
not the prosecutor—prepared the PSI. Although K.S.A. 2021 Supp.
21-6814(b)
provides that "the summary of the offender's criminal his-
tory prepared for the court by the state shall satisfy the state's burden of
proof regarding an offender's criminal history," K.S.A. 2022 Supp. 21-
6813(a) directs the district court to "order the preparation of the presen-
tence investigation report by the court services officer"—a report that
includes a criminal history worksheet. (Emphasis added.) Despite the
difference in the identity of the preparer, nothing in the statute suggests
that a PSI prepared by a court services officer, instead of a separate
summary prepared by the State, is required. Cf. State v. Schow, 287
Kan. 529, 537, 197 P.3d 825 (2008) (describing K.S.A. 21-4715, the
predecessor of K.S.A. 21-6814, as "address[ing] the legal effect of the
PSI report on the sentencing proceedings"). The PSI provided evidence
314 SUPREME COURT OF KANSAS VOL. 317
State v. Busch
the district court could consider when determining whether the State
had carried its burden of proof.
Unlike the burglary convictions, at least one version of the New
Jersey criminal trespass statute contains an element involving dwell-
ings:
"A person commits an offense if, knowing that he is not licensed or privileged to do so,
he enters or surreptitiously remains in any structure, or separately secured or occupied
portion thereof. An offense under this subsection is a crime of the fourth degree if it is
committed in a dwelling. Otherwise it is a disorderly persons offense." N.J. Stat. Ann. §
2C:18-3(a) (West 1981).
Thus, the crime of criminal trespass could be properly scored as a
person felony if the State carried its burden of proving that an element
of "entering or remaining within any residence, dwelling or habitation"
was present, as required by K.S.A. 2022 Supp. 21-6811(e)(3)(B)(i)(h).
As we have held, the State met this burden from its specific designation
on the PSI that this conviction was for a residential criminal trespass,
specifically, criminal trespass of the fourth degree. Thus, the district
court was correct in scoring this crime for sentencing purposes as a
person felony.
Defendant did not object to the summary of the New Jersey crim-
inal trespass conviction as set forth on the PSI. Nor did he provide ev-
idence at sentencing to refute that summary. The State thus carried its
burden at sentencing to show this conviction should be scored as a per-
son felony.
CONCLUSION
The district court erred when it scored Busch's burglary convic-
tions as person felonies, but it correctly scored his criminal trespass
conviction as a person felony. On remand for resentencing, we note
that nothing in this opinion precludes Busch from objecting to the per-
son felony designation of his prior criminal trespass conviction should
he elect, in good faith, to do so.
We affirm in part and reverse in part the judgment of the Court
of Appeals, affirm in part and vacate in part the judgment of the
district court, and remand the matter for resentencing.
VOL. 317 SUPREME COURT OF KANSAS 315
In re Eland
MODIFIED OPINION
1
No. 125,879
In the Matter of KENNETH J. ELAND, Respondent.
(528 P.3d 983)
ORIGINAL PROCEEDING IN DISCIPLINE
ATTORNEY AND CLIENT—Disciplinary Proceeding—One Hundred Eighty-
day Suspension.
Original proceeding in discipline. Original opinion filed April 28, 2023.
Modified opinion filed May 12, 2023. One hundred eighty-day suspension.
Julia A. Hart, Deputy Disciplinary Administrator, argued the cause, and
Gayle Larkin, Disciplinary Administrator, was with her on the formal complaint
for the petitioner.
John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of
Topeka, argued the cause, and Kenneth J. Eland, respondent, argued the cause
pro se.
PER CURIAM: This is an original proceeding in discipline filed
by the Office of the Disciplinary Administrator against the re-
spondent, Kenneth J. Eland, of Hoxie, an attorney admitted to the
practice of law in Kansas in 1984.
The Disciplinary Administrator filed a formal complaint
against Eland alleging violations of the Kansas Rules of Profes-
sional Conduct (KRPC). Eland answered and eventually stipu-
lated to some violations and disputed others. After a hearing be-
fore a panel of the Kansas Board for Discipline of Attorneys, the
panel issued a final hearing report on the formal complaint.
The hearing panel determined respondent had violated:
• Kansas Rules of Professional Conduct (KRPC) 1.1 (2023
Kan. S. Ct. R. at 327) (competence),
• KRPC 1.3 (2023 Kan. S. Ct. R. at 331) (diligence),
• KRPC 1.4(a) (2023 Kan. S. Ct. R. at 332) (communica-
tion),
1
REPORTER'S NOTE: Opinion No. 125,879 was modified by the Supreme
Court in response to Respondent's motion for modification filed on May 1, 2023.
Language referring to KRPC 4.1 was deleted from pages 2, 27, and 28.
316 SUPREME COURT OF KANSAS VOL. 317
In re Eland
• KRPC 1.15(a) (2023 Kan. S. Ct. R. at 372) (safe-
keeping property),
• KRPC 1.16(d) (2023 Kan. S. Ct. R. at 378) (declining or
terminating representation),
• KRPC 5.3(c)(2) (2023 Kan. S. Ct. R. at 408) (responsibil-
ities regarding nonlawyer assistance),
• and KRPC 8.4(c) (2023 Kan. S. Ct. R. at 433) (miscon-
duct).
Upon conclusion of the hearing, the panel made findings of
fact and conclusions of law and recommended Eland be suspended
from the practice of law for 180 days:
"Findings of Fact
"14. The hearing panel finds the following facts, by clear and convincing
evidence:
"15. The respondent maintains a law practice in Hoxie, Kansas and also
owns a real estate title insurance company named Eland Title, where the respond-
ent serves as a licensed abstractor.
"16. The respondent's title insurance company has offices in Oakley, Colby,
Hill City, Lawrence, and Hoxie, Kansas. The Hoxie office for Eland Title is in
the same building as the respondent's law office.
"17. The respondent employed and paid both his title office and law office
staff through the law office and not through Eland Title.
"18. In 2015, Farm & Ranch Realty, a real estate broker, hired Eland Title
to prepare a title insurance commitment for the auction of real estate located in
Gove County, Kansas. Farm & Ranch Realty also asked the respondent to pro-
vide an assessment of mineral interest ownership for the property, act as the clos-
ing agent for the sale of the real estate property, and provide the buyers with a
mineral title opinion.
"19. The respondent testified that the mineral title opinion could only be
prepared by him in his capacity as a lawyer, because Eland Title was not permit-
ted by its underwriter to issue a title insurance policy for mineral interests sev-
ered from the surface rights. The way a buyer could ensure that they acquire good
title to mineral interests is through a mineral title opinion.
"20. The Gove County property being auctioned by Farm & Ranch Realty
was formerly owned by Enoch Nelson of Gove County, Kansas. Enoch Nelson
previously owned the land in its entirety, including all surface and mineral inter-
ests. In 1947, Enoch Nelson transferred all surface land interest and a one-half
(1/2) interest in the mineral rights to D. Laverne Webb.
VOL. 317 SUPREME COURT OF KANSAS 317
In re Eland
"21. The D. Laverne Webb interest in the surface and mineral rights was
transferred to other individuals over the following years. From the evidence,
there appears to be no record that the one-half interest in the mineral rights re-
served by Enoch Nelson was transferred to any other individual or entity.
"22. The one-half mineral interest transferred to D. Laverne Webb was des-
ignated during the formal hearing as having the following legal description:
'An undivided one half (1/2) mineral interest in the West Half (W/2) of the
Southwest Quarter (SW/4) of Section Eight (8), Township Fourteen (14) South,
Range Thirty-one (31) West of the 6th P.M., Gove County, Kansas.'
"23. On August 5, 2008, the District Court of Gove County, Kansas entered
a Journal Entry of Foreclosure of a tax lien on the above-described one-half min-
eral interest.
"24. The one-half mineral interest previously owned by D. Laverne Webb
was sold at Sheriff's sale and the Gove County Sheriff conveyed the half mineral
interest via a 2009 Sheriff's Deed to W.R. and C.R., husband and wife as joint
tenants and not as tenants in common. The Sheriff's Deed was executed and filed
in April 2009.
"25. Sometime later, W.R. and C.R. transferred this one-half mineral inter-
est to the Rebarchek Trust. At this point, the Rebarchek Trust owned most or all
of the surface and mineral interests that Enoch Nelson transferred to D. Laverne
Webb in 1947. The Rebarchek Trust (hereinafter 'seller') hired Farm & Ranch
Realty to separate and sell the land at auction.
"26. The respondent viewed all of the parties to the 2015 real estate trans-
action, including the buyer, as his client.
"27. On August 13, 2015, Farm & Ranch Realty emailed Mark Samuelson,
an employee of Eland Title, and asked Eland Title to provide a preliminary title
commitment to the mineral interest for the Gove County property to be auc-
tioned. Farm & Ranch Realty also asked Eland Title to determine whether the
full mineral interest for this property was owned by one entity or divided up and
owned by more than one entity.
"28. Mr. Samuelson had approximately ten years of experience researching
land and mineral interests. He was not a licensed abstractor. Mr. Samuelson re-
searched the land and mineral interests for the Gove County property at the Gove
County Register of Deeds office and the Gove County District Court. Based on
Eland Title's routine practice, the respondent said that Mr. Samuelson then would
have brought any questions Mr. Samuelson had about what he discovered to the
respondent. At the respondent's direction, Mr. Samuelson went to the Gove
County Register of Deeds Office to research the property and informed the re-
spondent of his findings.
318 SUPREME COURT OF KANSAS VOL. 317
In re Eland
"29. Mr. Samuelson located and copied the 2009 Sheriff's deed to the
sellers. Mr. Samuelson also examined the District Court of Gove County probate
records but could not locate a probate case for Enoch Nelson.
"30. On September 15, 2015, relying on a preliminary title opinion from the
respondent, Farm & Ranch Realty auctioned the mineral interest associated with
the property to the buyer.
"31. Eland Title prepared the closing settlement paperwork for the auction
purchase. The buyer, DW Jayhawk, LLC, paid Eland Title $500.00 for the min-
eral title opinion. All other closing costs were split between the seller and buyer
and paid to Eland Title.
"32. Closing occurred on October 21, 2015. On this same date, Eland Title
paid to Eland Law Office the fees paid by the buyer and seller for closing, docu-
ment preparation, and the mineral title opinion.
"33. The buyer was not provided the written mineral title opinion by the
closing date. Despite this, the fees paid to Eland Law Office for the mineral title
opinion were deposited into the firm's operating account instead of its trust ac-
count.
"34. Ultimately, the respondent did not provide the mineral title opinion to
the buyers for this transaction until December 27, 2018.
"35. The respondent did, however, create and provide a Mineral Deed,
whereby the seller purported to give 100% of the mineral interest in the property
to the buyer.
"36. In spring 2016, the buyer contacted Eland Title and the seller con-
cerned about whether they owned 100% of the mineral interest and asking for
confirmation that the buyer did own 100%.
"37. Between May and August, 2016, the buyer and seller, through its at-
torney Steve Hirsh, sent emails and letters to the respondent's office expressing
concern whether 100% of the mineral interest was transferred to the buyer. They
requested confirmation from the respondent that the buyer owned 100% of the
mineral interest.
"38. On August 11, 2016, the buyer demanded the respondent provide a
written guarantee that the buyer owned 100% of the mineral interest. The re-
spondent's employee, Meghann Gourley, replied to the buyer's email stating that
the respondent was going to go over the documentation and would provide an
answer by the following Monday.
"39. On August 12, 2016, Ms. Gourley emailed the seller and seller's attor-
ney, stating that the respondent 'did not find any documents in our file that show
anyone else owns any mineral interests.' Further, the email said, 'There are sep-
arate mineral statements going out, so we are going to go to Gove on Monday to
check with the County Appraiser to see if they can shed any light on why there
VOL. 317 SUPREME COURT OF KANSAS 319
In re Eland
are separate tax statements.' Ms. Gourley said she would be in touch with them
the following week.
"40. On August 17, 2016, Ms. Gourley stated in an email to the seller and
buyer that the respondent had 'finished reviewing all the mineral research per-
taining to the minerals . . . [and] has determined that the minerals were 100% in
tact [sic] when you purchased them and DW Jayhawk does own 100% of the
minerals.' Ms. Gourley also stated that the respondent would get the mineral title
opinion typed and emailed to the buyer as soon as it was ready.
"41. On September 5, 2017, the buyer emailed Ms. Gourley stating that the
Gove County Assessor's Office showed nine (9) other people paying property
taxes on the mineral interest that the respondent had stated were owned 100% by
the buyer. The buyer again requested the written mineral opinion that it still had
not received from the respondent.
"42. On the same date, the buyer sent a second email stating the buyer found
information that Enoch Nelson had kept a one-half interest in the mineral rights
in 1947.
"43. In spring 2018, Gove County told the buyer that the buyer owed taxes
on half of the mineral interest because there were other owners of the other half.
"44. The buyer reached out to Farm & Ranch Realty asking again for assur-
ance that the buyer owned 100% of the mineral interest. Farm & Ranch Realty
responded on April 30, 2018: 'I actually visited with [Eland Title] on Thursday
and they still stand by their opinion that the minerals you purchased are correct.
There is one more item they are going to check on and then you will be receiving
their title opinion stating the minerals are intact as you purchased.'
"45. On June 20, 2018, Farm & Ranch Realty emailed the buyer and stated
that it had spoken with the respondent, that the respondent understood the buyer's
question about ownership of the mineral interest, and that the respondent had
researched the issue and would send a letter to the buyer with his findings. Farm
& Ranch Realty further said that any legal fees required to take care of the matter
would be at the respondent's expense.
"46. In autumn 2018, the buyer hired attorney Michael Andrusak to deter-
mine whether it owned 100% of the mineral interest purchased at the 2015 Farm
& Ranch Realty auction.
"47. On December 6, 2018, Ms. Gourley sent an email to Mr. Samuelson
that was dictated by the respondent and sent on the respondent's behalf. In the
dictated email, the respondent told Mr. Samuelson that Mr. Samuelson's prior
research did not show the heirs of Enoch Nelson. The respondent asked Mr. Sam-
uelson to locate the probate action for Enoch Nelson's estate, including the jour-
nal entry and an inventory of the estate, and also real estate tax statements for the
property to see who the county believed had an interest in the mineral rights. The
respondent also asked for a copy of the Sheriff's Deed from the tax foreclosure
sale of D. Laverne Webb's half mineral interest. Further, the email listed twenty
320 SUPREME COURT OF KANSAS VOL. 317
In re Eland
individuals with oil and gas leases covering the property in the chain of title. The
respondent told Mr. Samuelson that this was a priority and needed to be com-
pleted as soon as possible.
"48. On December 7, 2018, the respondent dictated an email to the buyer
wherein the respondent asserted again that the buyer owned 100% of the mineral
interest. In the first draft email, the respondent acknowledged that there were 'a
significant number of persons who have executed oil & gas leases on the property
in the past and I would recommend going ahead and completing a Quiet Title
Action to confirm fee title interest to you in the property.' The paragraph also
stated that the respondent would complete that Quiet Title Action at his own
expense. However, the respondent removed this language and directed his staff
to send the email without the language about the oil and gas leases and the sug-
gestion to complete a Quiet Title Action.
"49. In a December 14, 2018, emailed letter, Mr. Andrusak demanded the
respondent provide the buyer with the mineral title opinion.
"50. On December 26, 2018, Mr. Andrusak provided the respondent with a
release signed by the buyer to obtain the buyer's file from Eland Law Office. The
respondent did not provide the file to Mr. Andrusak. On January 28, 2019, Mr.
Andrusak traveled to the respondent's office to attempt to pick up the buyer's file.
The respondent did not provide the file to Mr. Andrusak on that date either.
"51. On December 27, 2018, Mr. Andrusak received the requested mineral
title opinion from the respondent. The title opinion dated October 22, 2015,
stated, in part, 'I am of the opinion that merchantable fee simple title to the above
described oil, gas and other minerals is vested as follows: DW Jayhawk, LLC
subject to the requirements, exceptions, comments and observations hereinafter
made.' The opinion listed no requirements, comments, or exceptions.
"52. While the opinion was dated October 22, 2015, the respondent
acknowledged that he wrote it in 2018. The respondent stated it was his practice
to always date the title opinion the same date that the deed is recorded.
"53. The respondent told the disciplinary investigator that the three-year de-
lay in providing the opinion to the buyer was due to a backlog in his office. The
respondent testified that ideally, a mineral interest title opinion should be pro-
vided within 30 days after closing the real estate transaction.
"54. While the respondent stated in the written mineral title opinion that he
reviewed the abstract of the title, the respondent agreed that no abstract exists.
"55. On February 28, 2019, the law firm Depew, Gillen, Rathburn & McIn-
teer conducted an independent title examination of the mineral interest at issue.
This opinion concluded that, at best, the buyer owned one-half of the mineral
interest.
VOL. 317 SUPREME COURT OF KANSAS 321
In re Eland
"56. On June 28, 2019, Mr. Andrusak, on behalf of the buyer, filed a lawsuit
against the respondent alleging malpractice and fraud regarding the real estate
transaction. The lawsuit was ultimately settled.
"57. On August 21, 2020, the respondent was deposed by counsel for the
buyer. During the deposition, counsel for the buyer asked the respondent, 'If you
were explaining to a client, how would you explain what a mineral title opinion
is?' The respondent answered, 'It is an attorney's opinion as to the ownership of
minerals in, on, and under a particular piece of real estate.' The respondent agreed
that a mineral title opinion will assess the defects that exist in the mineral title
and how those defects could be cured so that the reader could assess the risks
associated with the transaction. The respondent said he had experience writing
mineral opinions since 1984.
"58. The respondent would expect the buyer to rely on the mineral title
opinion he created to determine whether the seller was able to give the buyer
clear title.
"59. Further, the respondent was asked, 'If you're looking at a chain of title
and you see in the index that a particular tract seems to have a series of transac-
tions involving people who you can't figure out—you can't see in the record, how
they ever got any interest in the property to begin with, does that cause you to
take note?' The respondent responded affirmatively and added, 'Well, I think
what you're describing is a typical hole in the title . . . [a]nd there you're going to
go to the District Court to see if you can clear up that hole in the title.'
"60. When asked about 1947 Enoch Nelson deed where Nelson transferred
the surface and one-half mineral interest to D. Laverne Webb, reserving a one-
half mineral interest for Nelson, the respondent said:
'A. It's a mineral reservation contained in the deed.
'Q. Why is that significant?
'A. Because that person could claim some right, title, or interest, in and to
the minerals.
'Q. Did you follow a chain of title [sic] that reserved interest?
'A. Yes.
'Q. And where did it lead you?
'A. Nowhere.'
"61. The respondent agreed that there was no link connecting the half min-
eral interest reserved by Enoch Nelson to the sellers. The respondent testified
about several factors that caused the respondent concern about what mineral in-
terest was actually transferred to the buyer at the auction. Yet, the respondent
said that he believed that the buyer purchased 100% of the mineral interest in the
property.
"62. The respondent testified that he thought that the buyer could bring a
quiet tile action against anyone who claimed an interest in the property, including
322 SUPREME COURT OF KANSAS VOL. 317
In re Eland
the oil and gas leaseholders, to resolve any issues with the chain of title. At one
point, the following colloquy occurred:
'Q. Would you agree that an unrecorded deed from Enoch Nelson to some-
body else would have conveyed a mineral interest?
'A. Yes.
'Q. And you're saying that any such mineral interest now belongs to DW
Jayhawk?
'A. Yes.
'Q. And that's because it was somehow extinguished by the person who held
it after Enoch Nelson; right?
'A. Yes.
'Q. What extinguished that? What event extinguished that interest?
'A. The deed from the sellers to DW Jayhawk.
'Q. Okay. So you're saying that because the seller, who didn't actually own
it, said they were conveying it, that extinguished the interest in an unrecorded
deed; right?
'A. You're putting words in my mouth, and I am not going to agree with
those.
'Q. Did the seller to DW Jayhawk own the mineral interests?
'A. What's that?
'Q. Did the seller to DW Jayhawk own a hundred percent of the mineral
interests?
'A. I believe they did.
'Q. How did the seller to DW Jayhawk acquire the portion of the mineral
interests that had been reserved by Enoch Nelson in 1947?
'A. I don't have an answer to that.
'Q. Is it important to have an answer if you're going to get a title opinion?
'A. Sure.
'Q. And, all right. So why is—why do you hold the opinion, if you can't give
an answer for why you hold the opinion?
'A. Because I think a quiet title action will resolve the issue.'
"63. The respondent offered no further explanation for the reason he held
the opinion that the buyer owned 100% of the mineral interest or why a quiet
title action would resolve the issue. Counsel for the buyer asked the respondent,
'your opinion comes from your expertise . . . [a]nd it comes from your legal train-
ing; right?' The respondent answered affirmatively.
"64. When asked whether he was 'familiar with the concept that in a quiet
title action the plaintiff must rely on the strength of his own title and not the
weakness of his adversary,' the respondent answered, 'No.'
"65. The respondent admitted that he did not tell the buyer that the respondent
believed the one-half mineral interest reservation in Enoch Nelson could be resolved by
a quiet title action. He acknowledged his December 6, 2018, draft email to the buyer
where the respondent removed the language:
VOL. 317 SUPREME COURT OF KANSAS 323
In re Eland
'There are a significant number of persons who have executed oil & gas leases on
the property in the past and I would recommend going ahead and completing a Quiet
Title Action to confirm the title interest to you in the property. I do not believe that
should be at any expense to you since your mineral purchased [sic] was guaranteed in
your contract of sale. Therefore, I would complete that Quiet Title Action on your be-
half.'
"66. The respondent answered in the affirmative when asked, 'Do you still hold
that opinion today, that the minerals were intact at the time of the closing on this prop-
erty?'
"67. Counsel for the buyer asked the respondent in several different ways to pro-
vide a factual or legal basis for why the respondent believed the buyer owned 100% of
the mineral interest. The only explanation the respondent gave was that was what he
believed.
"68. The respondent also testified during the formal hearing in this disciplinary
matter. The respondent testified that the buyer did not purchase 100% of the mineral
interest and in fact only purchased 50% of the mineral interest. The respondent agreed
that he had previously missed the mineral reservation of Enoch Nelson.
"69. The respondent said that he had never chained the title from beginning to end
until after he received the mineral title opinion of the Depew, Rathman, Gillen and
McInteer law firm. However, the respondent stated that he did review the Depew title
opinion and conducted this beginning to end chain of title research prior to his deposition
testimony in August 2020.
"Conclusions of Law
"70. Based upon the findings of fact, the hearing panel concludes as a matter of
law that the respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC
1.4(a) (communication), KRPC 1.15(a) (safekeeping property), KRPC 1.16(d) (declin-
ing or terminating representation), KRPC 5.3(c)(2) (responsibilities regarding nonlaw-
yer assistance), and KRPC 8.4(c) (misconduct), as detailed below.
"71. The disciplinary administrator alleged that the respondent also violated
KRPC 4.1(a) (truthfulness in statements to others).
"72. The respondent did not properly research the chain of title despite many ob-
vious red flags indicating other individuals claimed an interest in the mineral rights prior
to offering an opinion that the seller could convey 100% of the mineral interest. How-
ever, the evidence stops short of establishing that the respondent violated KRPC 4.1(a).
"73. While, as discussed further below, the hearing panel concludes there is clear
and convincing evidence that the respondent engaged in conduct involving misrepre-
sentation by withholding information that would reveal his concerns about the chain of
title to the mineral interest (See KRPC 8.4[c]), there is not clear and convincing evidence
that the respondent 'knowingly . . . [made] a false statement of material fact or law to a
third person.' KRPC 4.1(a).
324 SUPREME COURT OF KANSAS VOL. 317
In re Eland
"KRPC 1.1
"74. Lawyers must provide competent representation to their clients. KRPC 1.1.
'Competent representation requires the legal knowledge, skill, thoroughness and prepa-
ration reasonably necessary for the representation.' Id.
"75. The respondent did not provide competent representation to the parties to this
real estate transaction. The respondent failed to provide legal knowledge, skill, thor-
oughness, and preparation reasonably necessary to offer an opinion regarding the min-
eral interest that the parties to the transaction could reasonably rely on.
"76. The respondent's August 12, 2020, deposition testimony shows that the respondent relied on no law or
facts to support his assertion to the seller, buyer, and Farm & Ranch Realty that the seller
owned and could convey the full mineral interest to the buyer. The respondent effec-
tively admitted that his opinion was baseless.
"77. The respondent stipulated that he violated KRPC 1.1.
"78. Accordingly, the hearing panel concludes that the respondent violated KRPC
1.1.
"KRPC 1.3
"79. Attorneys must act with reasonable diligence and promptness in represent-
ing their clients. See KRPC 1.3.
"80. The respondent failed to diligently and promptly represent the buyer, DW
Jayhawk. The respondent testified that generally, a mineral title opinion should be pro-
vided within 30 days after a real estate transaction closes.
"81. Here, the respondent did not provide the mineral title opinion to the buyer for
more than three years after closing.
"82. Further, the respondent failed to properly and diligently research the mineral
title to the property, despite several clear indications that the sellers did not own 100%
of the mineral interests, before providing assurances to the parties to the transaction that
the seller could convey 100% of the mineral interests.
"83. The respondent stipulated that he violated KRPC 1.3.
"84. Because the respondent failed to act with reasonable diligence and prompt-
ness in representing his client, the hearing panel concludes that the respondent violated
KRPC 1.3.
"KRPC 1.4
"85. 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 infor-
mation.' Id.
VOL. 317 SUPREME COURT OF KANSAS 325
In re Eland
"86. In this case, the respondent violated KRPC 1.4(a) when he failed to respond
to multiple requests from the buyer for information regarding the status of the mineral
interest the buyer had purchased. The buyer spent three years trying to obtain confirma-
tion from the respondent about the mineral interests and ultimately had to hire another
attorney to obtain the information requested.
"87. Further, the respondent failed to communicate information that he knew
about to the buyer that could affect the buyer's interest in the property, including the fact
that multiple oil and gas leases executed by others on the property could present an issue
for the buyer and that further legal action may be necessary to establish the buyer's rights.
"88. The respondent stipulated that he violated KRPC 1.4(a).
"89. Accordingly, the hearing panel concludes that the respondent violated KRPC
1.4(a).
"KRPC 1.15
"90. Lawyers must properly safeguard and hold in a separate account the property
of their clients and third persons. Unearned fees must be deposited into an attorney trust
account. KRPC 1.15(a).
"91. KRPC 1.15(a) specifically provides that:
'(a) A lawyer shall hold property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own property.
Funds shall be kept in a separate account maintained in the state of Kansas. Other prop-
erty shall be identified as such and appropriately safeguarded. Complete records of such
account funds and other property shall be kept by the lawyer and shall be preserved for
a period of five years after termination of the representation.'
"92. In this case, the buyer paid Eland Title $500.00 (or, possibly as much as
$1,000.00) for the written mineral title opinion and Eland Title paid this $500.00 (or
$1,000.00) to Eland Law Office for the opinion on the date of closing, October 21, 2015.
"93. Eland Law Office deposited these funds into the firm operating account in-
stead of its trust account that same day.
"94. The buyer was not provided the written mineral title opinion by October 21,
2015. As a result, the funds paid by the buyer [were] not earned on the date [they were]
deposited into the Eland Law Office operating account.
"95. The respondent stipulated that he violated KRPC 1.15(a).
"96. Accordingly, the hearing panel concludes that the respondent failed to
properly safeguard DW Jayhawk's property, in violation of KRPC 1.15(a).
"KRPC 1.16(d)
"97. KRPC 1.16 requires lawyers to take certain steps to protect clients after the
representation has been terminated. Specifically, KRPC 1.16(d) provides:
326 SUPREME COURT OF KANSAS VOL. 317
In re Eland
'Upon termination of representation, a lawyer shall take steps to the extent reason-
ably 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 relating to the client to the extent permitted
by other law.'
"98. On December 14, 2018, Mr. Andrusak advised the respondent that he
represented the buyer. On December 26, 2018, Mr. Andrusak provided the re-
spondent with a release signed by the buyer to obtain the buyer's file from Eland
Law Office. The respondent did not provide Mr. Andrusak with the buyer's file.
"99. On January 28, 2019, Mr. Andrusak traveled to the respondent's office
to attempt to pick up the buyer's file. The respondent did not provide the buyer's
file on this date either.
"100. The respondent violated KRPC 1.16(d) when he failed to return the
buyer's file, which is the property of the buyer, to the buyer or the buyer's coun-
sel.
"101. The respondent stipulated that he violated KRPC 1.16(d).
"102. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.16(d).
"KRPC 5.3(c)(2)
"103. With respect to a nonlawyer employed or retained by or associated
with a lawyer:
'(c) [A] lawyer shall be responsible for conduct of such a person that would
be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, rati-
fies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the
law firm in which the person is employed, or has direct supervisory authority
over the person, and knows of the conduct at a time when its consequences can
be avoided or mitigated but fails to take reasonable remedial action.'
"104. Attorneys in supervisory positions must properly supervise nonlaw-
yer assistants. Here, the respondent failed to properly supervise his employees to
ensure proper research was conducted to create a complete and accurate mineral
title opinion. Further, the respondent failed to properly supervise his employees
to ensure that accurate information was properly communicated between his of-
fice and his clients.
"105. The respondent stipulated that he violated KRPC 5.3(c)(2).
"106. Accordingly, the hearing panel concludes that the respondent violated
KRPC 5.3(c)(2).
VOL. 317 SUPREME COURT OF KANSAS 327
In re Eland
"KRPC 8.4(c)
"107. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c).
"108. It is clear from the evidence the respondent was aware that his office
may have neglected issues in its research of the mineral interest. There were nu-
merous red flags in the chain of title, including the unresolved issue of where the
half reserved mineral interest of Enoch Nelson transferred after his death and
why other individuals were paying taxes and executing oil and gas leases on the
mineral interest in the property. Based on his expertise and experience in this
area of the law, these facts should have, and as the respondent's testimony during
the deposition revealed, did alert the respondent to the fact that the mineral title
opinion may not be accurate.
"109. The evidence shows that the respondent was aware of these facts and
questioned his own legal conclusion that the seller could transfer 100% of the
mineral interest to the buyer.
"110. The respondent knowingly misrepresented the facts when he failed
to advise the buyer of the concerns he saw that could lead to the conclusion that
not all of the mineral interest was transferred to the buyer during the 2015 real
estate sale.
"111. Further, by the time the respondent testified during his deposition, he
knew there was some problem with the title but continued to insist that his min-
eral title opinion was 100% accurate. At the time of the formal hearing, this in-
consistency was never fully explained by the respondent.
"112. As such, the hearing panel concludes that the respondent violated
KRPC 8.4(c).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"113. In making this recommendation for discipline, the hearing panel con-
sidered 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 po-
tential or actual injury caused by the lawyer's misconduct, and the existence of
aggravating or mitigating factors.
"114. Duty Violated. The respondent violated his duty to his clients and to
the public.
"115. Mental State. The respondent knowingly violated certain duties and
negligently violated other duties.
328 SUPREME COURT OF KANSAS VOL. 317
In re Eland
"116. Injury. As a result of the respondent's misconduct, the respondent
caused the parties to the real estate transaction to be misled about matters that
might impact the mineral interest being conveyed, when the respondent was
hired for the purpose of providing a legal opinion on this issue. The respondent
also caused the buyer to spend years, effort, and expense in paying an attorney
to obtain its file and information from respondent and for a mineral title opinion
from the Depew, Rathman, Gillen and McInteer Law Firm that it had already
paid the respondent to provide. Further, the buyer purchased the mineral interest
based on the respondent's representation that it was purchasing 100% of the min-
eral interest but may have obtained only up to one-half of the mineral interest.
"Aggravating and Mitigating Factors
"117. Aggravating circumstances are any considerations or factors that may
justify an increase in the degree of discipline to be imposed. In reaching its rec-
ommendation for discipline, the hearing panel, in this case, found the following
aggravating factors present:
"118. Prior Disciplinary Offenses. The respondent has been previously dis-
ciplined with informal admonition on two occasions. However, both prior infor-
mal admonitions were imposed more than twenty years ago, the first being in
1998 and the second in 2000. The hearing panel concludes that the two prior
informal admonitions, which are so remote, are neither aggravating nor mitigat-
ing.
"119. Dishonest or Selfish Motive. The respondent spent a long time avoid-
ing responsibility for resolving the mineral title issue and providing a written
opinion. The hearing panel concludes that an apparent motivation for the re-
spondent's delay was to avoid a negative impact on his pride and reputation in
the title industry. Accordingly, the hearing panel concludes that the respondent's
misconduct was motivated by selfishness.
"120. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct. The respondent repeatedly and consistently violated the Kansas
Rules of Professional Conduct regarding this mineral title opinion over the
course of more than three years.
"121. Multiple Offenses. The respondent committed multiple rule viola-
tions. The respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence),
KRPC 1.4(a) (communication), KRPC 1.15(a) (safekeeping property), KRPC
1.16(d) (declining or terminating representation), KRPC 5.3(c)(2) (responsibili-
ties regarding nonlawyer assistance), and KRPC 8.4(c) (misconduct). Accord-
ingly, the hearing panel concludes that the respondent committed multiple of-
fenses.
"122. Refusal to Acknowledge Wrongful Nature of Conduct. The respond-
ent has refused to acknowledge his misrepresentation and the harm that his con-
VOL. 317 SUPREME COURT OF KANSAS 329
In re Eland
duct caused the parties to the real estate transaction, particularly the buyer. Ac-
cordingly, the hearing panel concludes that the respondent refused to
acknowledge the wrongful nature of his conduct.
"123. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1984. At
the time of the misconduct, the respondent had been practicing law for more than
30 years. Further, the respondent testified that he has significant experience in
the practice of law doing title work and owns title company offices in five dif-
ferent cities in Kansas. The hearing panel concludes that the respondent has sub-
stantial experience in the practice of law and in the area of title work, specifically.
"124. Refusal to Take Action to Mitigate Negative Consequences of Mis-
conduct. There were clear signs early on that the respondent's conclusions re-
garding the mineral interest were not supported. Yet, despite the respondent's
substantial experience in the law and with performing title work, he refused to
take feasible actions to cure the problem or even notify the parties to the trans-
action of the issues at a time when they could have been more easily rectified
and the harm mitigated.
"125. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its rec-
ommendation for discipline, the hearing panel, in this case, found the following
mitigating circumstances present:
"126. Previous Good Character and Reputation in the Community Includ-
ing Any Letters from Clients, Friends and Lawyers in Support of the Character
and General Reputation of the Attorney. The respondent is an active and produc-
tive member of the bar of Sheridan County, Kansas and surrounding areas. The
respondent also enjoys the respect of his peers and generally possesses a good
character and reputation as evidenced by the testimony of former judge Robert
Schmisseur, attorney Ronald Shalz, and several letters received by the hearing
panel.
"127. The Present and Past Attitude of the Attorney as Shown by His Co-
operation During the Hearing and His Full and Free Acknowledgment of the
Transgressions. The respondent cooperated with the disciplinary process. Addi-
tionally, the respondent admitted many of the facts that gave rise to the violations
and stipulated that he violated KRPC 1.1 (competence); KRPC 1.3 (diligence);
KRPC 1.4(a) (communication); KRPC 1.15(a) (safekeeping property); KRPC
1.16(d) (declining or terminating representation); and KRPC 5.3(c)(2) (respon-
sibilities regarding nonlawyer assistance).
"128. A factor which is neither aggravating nor mitigating is forced or com-
pelled restitution. The respondent ultimately settled the lawsuit brought against
him by the buyer and made payment to the buyer for damages. However, the
hearing panel concludes that this fact is neither aggravating nor mitigating be-
cause the payment to the buyer was made years after the real estate closing time
period and the buyer was forced to file a lawsuit to obtain it.
330 SUPREME COURT OF KANSAS VOL. 317
In re Eland
"129. In addition to the above-cited factors, the hearing panel has thor-
oughly 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 po-
tential injury to a client.'
'4.13 Reprimand is generally appropriate when a lawyer is negligent in deal-
ing 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.'
'4.54 Admonition is generally appropriate when a lawyer engages in an iso-
lated instance of negligence in determining whether he or she is competent to
handle a legal matter, and causes little or no actual or potential injury to a client.'
'4.62 Suspension is generally appropriate when a lawyer knowingly de-
ceives a client, and causes injury or potential injury to the client.'
'4.63 Reprimand is generally appropriate when a lawyer negligently fails to
provide a client with accurate or complete information, and causes injury or po-
tential injury to the client.'
'5.13 Reprimand is generally appropriate when a lawyer knowingly engages
in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation
and that adversely reflects on the lawyer's fitness to practice law.'
'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.'
'7.3 Reprimand is generally appropriate when a lawyer negligently 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 of the Parties
"130. The disciplinary administrator recommended that the respondent be
suspended for a period of 180 days.
"131. The respondent recommended that he receive a public censure.
"Discussion
"132. The respondent initially acted negligently regarding this real estate
transaction. Over time the respondent's conduct turned into a pattern of negli-
gence and, ultimately, knowing misrepresentations of the facts to the parties to
the transaction. The respondent's lack of competence in handling the matter, de-
positing the fees paid for the mineral title opinion into his firm operating account,
and failure to turn the buyer's file over to new counsel in a timely manner appear
to be a result of the respondent's negligence.
VOL. 317 SUPREME COURT OF KANSAS 331
In re Eland
"133. The hearing panel concludes that the respondent did not intend to
mislead the buyer or other parties to the transaction, but instead missed the issues
with the mineral title initially and then believed any issue with title could be
resolved with a quiet title action. However, the respondent's misconduct is seri-
ous and warrants suspension from the practice of law.
"134. The hearing panel recognizes that the Supreme Court 'bases each dis-
ciplinary sanction on the specific facts and circumstances of the violations and
aggravating and mitigating circumstances presented in the case,' and 'while prior
cases may have some bearing on the sanctions that the court elects to impose,
those prior cases must give way to consideration of the unique circumstances that
each individual case presents.' In re Williams, 302 Kan. 990, 1003, 362 P.3d 816
(2015).
"135. The hearing panel concludes that both the specific circumstances in
this case as well as discipline imposed for similar conduct in prior attorney dis-
cipline cases warrant the discipline recommended below. See In re Borich, 316
Kan. 257, 514 P.3d 352 (2022) (attorney's knowing and negligent violation of
rules including KRPC 1.1, 1.15, 1.16, and 8.4(c) warranted one-year suspen-
sion); In re Winterberg, 314 Kan. 486, 500 P.3d 535 (2021) (attorney's negligent
and knowing violation of rules including KRPC 1.3, 1.4(a), and 8.4(c) resulted
in six-month suspension); In re Colvin, 300 Kan. 864, 336 P.3d 823 (2014) (de-
spite the serious nature of respondent's conduct, which included knowing mis-
representation, published censure was held appropriate).
"Recommendation of the Hearing Panel
"136. Based upon the findings of fact, conclusions of law, and the Standards
listed above, the hearing panel unanimously recommends that the respondent be
suspended for a period of 180 days. The panel does not recommend that the re-
spondent be required to undergo a reinstatement hearing pursuant to Rule 232.
However, the hearing panel encourages the respondent to follow through with
his testimony that he will formulate a plan to develop a division between his law
office and title company and business practices to ensure the respondent com-
plies with the rules of professional conduct.
"137. Costs are assessed against the respondent in an amount to be certified
by the Office of the Disciplinary Administrator."
DISCUSSION
In a disciplinary proceeding, we consider the evidence, the
disciplinary panel's findings, and the parties' arguments and deter-
mine whether KRPC violations exist and, if they do, the appropri-
ate discipline. Attorney misconduct must be established by clear
and convincing evidence. In re Spiegel, 315 Kan. 143, 147, 504
P.3d 1057 (2022); see Supreme Court Rule 226(a)(1)(A) (2023
332 SUPREME COURT OF KANSAS VOL. 317
In re Eland
Kan. S. Ct. R. at 281). "'Clear and convincing evidence is "evi-
dence that causes the factfinder to believe that 'the truth of the
facts asserted is highly probable.'"'" 315 Kan. at 147.
Respondent Eland had adequate notice of the formal com-
plaint, the hearing before the panel, and the hearing before this
court. And he had the opportunity to present evidence at his hear-
ing and argue before this court. He also had the opportunity to take
exception to the hearing panel's findings in its final hearing report.
He chose to take no exceptions, and we thus deem the panel's find-
ings of fact admitted. Supreme Court Rule 228(g)(1), (2) (2023
Kan. S. Ct. R. at 287).
These admitted facts establish by clear and convincing evi-
dence the charged misconduct in violation of:
• Kansas Rules of Professional Conduct (KRPC) 1.1 (2023
Kan. S. Ct. R. at 327) (competence),
• KRPC 1.3 (2023 Kan. S. Ct. R. at 331) (diligence),
• KRPC 1.4(a) (2023 Kan. S. Ct. R. at 332) (communica-
tion),
• KRPC 1.15(a) (2023 Kan. S. Ct. R. at 372) (safekeeping
property),
• KRPC 1.16(d) (2023 Kan. S. Ct. R. at 378) (declining or
terminating representation),
• KRPC 5.3(c)(2) (2023 Kan. S. Ct. R. at 408) (responsibil-
ities regarding nonlawyer assistance),
• and KRPC 8.4(c) (2023 Kan. S. Ct. R. at 433) (miscon-
duct).
The only issue left to be determined is the appropriate disci-
pline. During oral arguments, both the Disciplinary Administra-
tor's office and respondent Eland agreed the panel's recommenda-
tion of a 180-day suspension was appropriate discipline and that
no reinstatement hearing under Supreme Court Rule 232 (2023
Kan. S. Ct. R. at 293) was necessary. See Supreme Court Rule
232(d) (2023 Kan. S. Ct. R. at 294). This court is not bound by the
recommendations made by the Disciplinary Administrator or the
hearing panel, however. In re Long, 315 Kan. 842, 853, 511 P.3d
952 (2022). That said, after considering the evidence presented,
VOL. 317 SUPREME COURT OF KANSAS 333
In re Eland
the recommendations of the hearing panel, and the recommenda-
tions of the parties, we determine the recommended discipline is
appropriate. We also agree that respondent Eland need not un-
dergo a reinstatement hearing.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that, effective April 28, 2023, the
date of the original opinion, the court suspends Kenneth J. Eland
from the practice of law in the state of Kansas, for 180 days in
accordance with Supreme Court Rule 225(a)(3) (2023 Kan. S. Ct.
at 281) for violating KRPC 1.1, 1.3, 1.4(a), 1.15(a), 1.16(d),
5.3(c)(2), and 8.4(c).
IT IS FURTHER ORDERED that respondent shall comply with
Supreme Court Rule 231 (2023 Kan. S. Ct. R. at 292) (notice to
clients, opposing counsel, and courts following suspension or dis-
barment).
IT IS FURTHER ORDERED that respondent shall comply with
Supreme Court Rule 232(b) when seeking reinstatement and that
Rule 232(d) applies in that a reinstatement hearing is not required.
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.
WALL, J., not participating.
334 SUPREME COURT OF KANSAS VOL. 317
In re Wrongful Conviction of Bell
No. 125,600
In the Matter of the Wrongful Conviction of ERIC L. BELL.
(529 P.3d 153)
SYLLABUS BY THE COURT
CIVIL PROCEDURE—Action for Wrongful Conviction and Imprisonment—
Statutory Application. K.S.A. 2022 Supp. 60-5004(d)(2)'s use of the phrase
"convicted, imprisoned and released from custody" refers to the imprison-
ment for which a claimant is seeking compensation, rather than some other,
unrelated imprisonment.
Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL,
judge. Opinion filed May 19, 2023. Affirmed.
Larry G. Michel, of Kennedy Berkley, of Salina, was on the brief for appel-
lant.
Kurtis K. Wiard, assistant solicitor general, and Derek Schmidt, attorney
general, were on the brief for appellee.
The opinion of the court was delivered by
WILSON, J.: Eric L. Bell directly appeals from the Sedgwick
County District Court's dismissal of his K.S.A. 2021 Supp. 60-
5004 wrongful conviction action for failure to state a claim on
which relief can be granted under K.S.A. 2021 Supp. 60-
212(b)(6). Bell argues that the district court erroneously con-
cluded the statute of limitations barred his action. He claims enti-
tlement to the application of both the statutory tolling provision in
K.S.A. 60-515(a) and the doctrine of equitable tolling. We disa-
gree and affirm the district court.
FACTS AND PROCEDURAL BACKGROUND
Bell's wrongful conviction claim arises from his 2004 convic-
tions and imprisonment, described in his three previous appeals.
State v. Bell, No. 93,153, 2005 WL 3030333 (Kan. App. 2005)
(unpublished opinion) (Bell I); Bell v. State, No. 99,484, 2009 WL
454946 (Kan. App. 2009) (unpublished opinion) (Bell II); Bell v.
State, 46 Kan. App. 2d 488, 263 P.3d 840 (2011) (Bell III). A sum-
mary sets the stage for the claims before us.
A jury found Bell guilty of one count each of rape and criminal
restraint and four counts of domestic battery. Bell I, 2005 WL 3030333,
VOL. 317 SUPREME COURT OF KANSAS 335
In re Wrongful Conviction of Bell
at *1. For these convictions, he was sentenced to 253 months in prison.
Bell consistently maintained his innocence to these crimes.
A panel of the Kansas Court of Appeals affirmed Bell's convic-
tions in Bell I. But Bell's subsequent K.S.A. 60-1507 action, which
spanned both Bell II and Bell III, proved more successful. In 2011, a
panel of the Kansas Court of Appeals reversed Bell's convictions based
on juror misconduct. Bell III, 46 Kan. App. 2d at 489, 497. After the
State declined to retry Bell, the district court dismissed his charges and
ordered him released. According to Bell, his then-attorney told him he
had no right to any compensation for this imprisonment.
Subsequent Developments
Bell was later convicted of unrelated charges. He was imprisoned
in June 2018 and apparently remained incarcerated at all relevant times
afterward.
On July 1, 2018, K.S.A. 2018 Supp. 60-5004 went into effect, cre-
ating a cause of action that allows "a person convicted and subse-
quently imprisoned for one or more crimes that such person did not
commit" to seek damages from the state. K.S.A. 2018 Supp. 60-
5004(a)-(b). K.S.A. 2018 Supp. 60-5004(d)(1) set forth a two-year stat-
ute of limitations, while K.S.A. 2018 Supp. 60-5004(d)(2) provided
that "[a] claimant convicted, imprisoned and released from custody be-
fore July 1, 2018, must commence an action under this section no later
than July 1, 2020."
Then came the COVID-19 global pandemic. Pertinent to Bell's po-
tential cause of action for wrongful conviction, Kansas Supreme Court
Administrative Order No. 2020-PR-016, effective March 18, 2020,
suspended "all statutes of limitations and statutory time standards or
deadlines applying to the conduct or processing of judicial proceed-
ings" until further order. Paragraph (4) of Order 2020-PR-016. Later
orders extended that suspension. Kansas Supreme Court Administra-
tive Order No. 2020-PR-58, effective May 27, 2020; Kansas Supreme
Court Administrative Order No. 2020-PR-101, effective September
15, 2020.
But on April 15, 2021, Administrative Order No. 2021-PR-020,
effective March 30, 2021, lifted the suspension of most statutes of lim-
itations—including K.S.A. 2020 Supp. 60-5004's statute of limitations.
336 SUPREME COURT OF KANSAS VOL. 317
In re Wrongful Conviction of Bell
When the suspension was lifted, application of the statutory deadline
gave Bell until July 28, 2021, to file his case.
In October 2021, Bell asserts another inmate told him about a pos-
sible cause of action under K.S.A. 2021 Supp. 60-5004. Bell soon
drafted a petition and a motion to file suit out of time, which he dated
November 18, 2021, and which was filed with the clerk of the district
court later that same month.
District Court Proceedings
The State moved to dismiss Bell's case, arguing among other
things that Bell had failed to timely sue. Bell responded pro se to the
State's motion; his counsel also responded. Bell's counsel argued that
the statute of limitations was tolled under K.S.A. 60-515 and that the
statute of limitations should be equitably tolled. Additionally, Bell's
counsel argued that the extent of Bell's access to the courts under
K.S.A. 60-515 constituted a question of fact, thus rendering the case
inappropriate for dismissal under K.S.A. 2021 Supp. 60-212(b)(6).
Bell himself argued that "the honest reason why [he] did not file a claim
under K.S.A. 60-5004 [was] that [he] simply had absolutely no
knowledge or information regarding its existence until October of 2021
& wasted absolutely NO time drafting & submitting [his] Motion To
File A Claim Out of Time."
In a brief order, the district court granted the State's motion to dis-
miss because "the case was filed outside the statute of limitations." Bell
then appealed.
ANALYSIS
Bell argues the district court incorrectly dismissed his suit for fail-
ure to state a claim because factual questions remain over the applica-
tion of K.S.A. 60-515(a) and the doctrine of equitable tolling. Bell also
claims that the "literal interpretation" of K.S.A. 2022 Supp. 60-
5004(d)(2) establishes that the court erred in dismissing his claim. Bell
raised all three arguments below, thus preserving them for review.
Standard of Review
When a district court dismisses an action under K.S.A. 2022 Supp.
60-212(b)(6) for failure to state a claim, an appellate court must "'de-
termine whether, in the light most favorable to the plaintiff, and with
VOL. 317 SUPREME COURT OF KANSAS 337
In re Wrongful Conviction of Bell
every doubt resolved in the plaintiff's favor, the petition states any valid
claim for relief.'" McCormick v. City of Lawrence, 278 Kan. 797, 798,
104 P.3d 991 (2005). When such a dismissal is based on the interpre-
tation of a statute, the court's review is de novo. 278 Kan. at 798.
Discussion
K.S.A. 2022 Supp. 60-5004(d)(1)-(2) establish the statute of limi-
tations applicable to civil claims for wrongful conviction and impris-
onment:
"(d)(1) The suit, accompanied by a statement of the facts concerning the claim for
damages, verified in the manner provided for the verification of complaints in the rules
of civil procedure, shall be brought by the claimant within a period of two years after
the: (A) Dismissal of the criminal charges against the claimant or finding of not guilty
on retrial; or (B) grant of a pardon to the claimant.
"(2) A claimant convicted, imprisoned and released from custody before July 1,
2018, must commence an action under this section no later than July 1, 2020."
We begin with Bell's argument over the interpretation of
K.S.A. 2022 Supp. 60-5004(d)(2). While Bell admits that the lan-
guage "convicted, imprisoned and released" "is probably based on
the assumption that the incarceration in question is for the crime
for which the defendant was wrongfully convicted," he points out
that nothing in the statute confirms that assumption. Instead, Bell
argues that, because he was in prison on July 1, 2018, on charges
unrelated to his wrongful imprisonment claim, K.S.A. 2022 Supp.
60-5004(d)(2) "requires denial of the State's motion" to dismiss.
We disagree. To interpret K.S.A. 2022 Supp. 60-5004(d)(2)
as Bell suggests would doom his claim, not save it. K.S.A. 2022
Supp. 60-5004 did not exist when Bell was released from prison
for the underlying crime back in 2012; the cause of action, when
the Legislature created it, only grandfathered individuals like
him—that is, people previously "convicted, imprisoned and re-
leased from custody"—under K.S.A. 2022 Supp. 60-5004(d)(2).
If K.S.A. 60-5004(d)(2) did not apply to Bell because he was im-
prisoned on July 1, 2018, on charges unrelated to his wrongful
imprisonment claim, Bell's two-year deadline to file would have
passed in 2014—four years before the statute was enacted. As this
construction is absurd, it cannot reflect the Legislature's intent.
E.g., State v. Scheuerman, 314 Kan. 583, 590, 502 P.3d 502, cert.
338 SUPREME COURT OF KANSAS VOL. 317
In re Wrongful Conviction of Bell
denied 143 S. Ct. 403 (2022). Instead, we construe K.S.A. 2022
Supp. 60-5004(d)(2)'s use of the phrase "convicted, imprisoned
and released from custody" to refer to the wrongful imprisonment
for which a claimant is seeking compensation, rather than some
other, unrelated imprisonment. Because Bell had been convicted,
imprisoned, and released from custody on the charges for which
he now seeks compensation, his deadline to file was July 1, 2020,
unless tolled by another provision of law.
We turn next to Bell's claims that the district court erred by
not applying the tolling provision in K.S.A. 60-515(a) or the doc-
trine of equitable tolling to extend his time to file. Neither theory
affords Bell relief.
K.S.A. 60-515(a) provides, in relevant part:
"[I]f any person entitled to bring an action . . . at the time the cause of action
accrued or at any time during the period the statute of limitations is running, is .
. . imprisoned for a term less than such person's natural life, such person shall be
entitled to bring such action within one year after the person's disability is re-
moved, except that no such action shall be commenced by or on behalf of any
person under the disability more than eight years after the time of the act giving
rise to the cause of action.
"Notwithstanding the foregoing provision, if a person imprisoned for any
term has access to the court for purposes of bringing an action, such person shall
not be deemed to be under legal disability."
Bell argues that the COVID-19 pandemic altered normal court
function and limited Bell's ability "to access resources and interact
with other prisoners, which was how he became aware of the
change in the law." But Bell fails to show how those things af-
fected his access to the court for the purpose of bringing an action.
While the effect of an alteration to normal court functioning
might pose a question of fact on its own, Bell's own arguments
undercut any such question. As Bell's pro se response to the mo-
tion to dismiss argues, "the honest reason why [he] did not file a
claim under K.S.A. 60-5004 [was] that [he] simply had absolutely
no knowledge or information regarding its existence until October
of 2021 & wasted absolutely NO time drafting & submitting [his]
Motion To File A Claim Out of Time." This assertion, combined
with the fact that Bell filed suit while he was apparently incarcer-
ated, undermines any claim that he lacked "access to the court for
VOL. 317 SUPREME COURT OF KANSAS 339
In re Wrongful Conviction of Bell
purposes of bringing an action." Cf. Hood v. Prisoner Health Ser-
vices., Inc., 180 Fed. Appx. 21, 25 (10th Cir. 2006) (unpublished
opinion) (noting that the plaintiff did not present "any facts tend-
ing to show that he lacked access to the courts [in fact, when this
suit was ultimately filed, he remained in KDOC custody]").
Further, Bell's conclusory claim that the COVID-19 protocols
affected his "access" of any kind ignores that he was in prison for
roughly 21 months before the advent of the COVID-19 pandemic.
In other words, Bell had about 21 months to sue before any
COVID-19-related protocols went into effect.
When the suspension of the statute of limitations was lifted,
Bell still had about three months under the black letter of the stat-
ute to file. That time clearly expired without a filing. Thus, we
perceive no unresolved question of fact as to K.S.A. 60-515(a)'s
tolling provision.
We finally turn to the doctrine of equitable tolling. Under cer-
tain circumstances, "[e]quitable estoppel can be applied to bar a
party from relying on the defense of the statute of limitations."
Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 116, 991
P.2d 889 (1999). The burden is on the party claiming application
of the doctrine.
"'A party asserting equitable estoppel must show that another party, by its
acts, representations, admissions, or silence when it had a duty to speak, induced
it to believe certain facts existed. It must also show it rightfully relied and acted
upon such belief and would now be prejudiced if the other party were permitted
to deny the existence of such facts.'" Rockers v. Kansas Turnpike Authority, 268
Kan. at 116 (quoting United American State Bank & Trust Co. v. Wild West
Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 [1977]).
Each element of equitable estoppel must be proved or the
claim fails. Rockers, 268 Kan. at 116.
Interpreting federal law, the United States Supreme Court has
recognized "that a nonjurisdictional federal statute of limitations
is normally subject to a 'rebuttable presumption' in favor 'of equi-
table tolling.'" Holland v. Florida., 560 U.S. 631, 645-46, 130 S.
Ct. 2549, 177 L. Ed. 2d 130 (2010). Under this framework, if a
statute of limitations is subject to equitable tolling, "a 'petitioner'
is 'entitled to equitable tolling' only if he shows '(1) that he has
340 SUPREME COURT OF KANSAS VOL. 317
In re Wrongful Conviction of Bell
been pursuing his rights diligently, and (2) that some extraordi-
nary circumstance stood in his way' and prevented timely filing."
(Emphasis added.). 560 U.S. at 649.
Assuming without deciding that the statute of limitations in
K.S.A. 2022 Supp. 60-5004 is subject to equitable tolling, we
again find no lingering question of fact needing resolution. As
both Rockers and Holland clarify, Bell bears the burden of pre-
senting and proving his claim. Under Rockers, that requires proof
of State inducement by action or silence, reliance upon such action
or silence, and prejudice. Under the Holland framework, Bell
would need to prove diligent pursuit of his rights and an extraor-
dinary circumstance that prevented him from timely filing his
claim. As we have already noted, Bell's pro se filings before the
district court clarify that ignorance of the law alone delayed his
lawsuit. And "mere ignorance of the law is not a basis for equita-
ble tolling of a statute of limitations, even for pro se prisoners."
State v. Fox, 310 Kan. 939, 943, 453 P.3d 329 (2019).
Federal courts have explored more thoroughly the effect of
COVID-19 on equitable tolling. See generally Downey, Extraor-
dinary Circumstances and Extraordinary Writs: Equitable Toll-
ing During the Covid-19 Pandemic and Beyond, 27 Berkeley J.
Crim. L. 31 (2022). The Tenth Circuit recently concluded that a
pro se prisoner was not entitled to equitable tolling in the COVID-
19 era based on limited access to a law library when he failed to
show that he had been "pursuing his rights diligently throughout
the one-year window, including before the COVID-19 restrictions
went into place." Donald v. Pruitt, 853 Fed. Appx. 230, 234 (10th
Cir. 2021) (unpublished opinion) (citing several similar COVID-
19-era cases in accord). Pre-COVID cases generally reached sim-
ilar outcomes. E.g., Jones v. Taylor, 484 Fed. Appx. 241, 242
(10th Cir. 2012) (unpublished opinion) ("Ordinarily, however,
neither ignorance of the law nor limited access to materials and
legal assistance supports a claim of equitable tolling."). And while
"a complete denial of access to materials at a critical time may
justify equitable tolling," this justification evaporates when a pris-
oner also could have acted at times when there was no such denial.
Jones, 484 Fed. Appx. at 243.
VOL. 317 SUPREME COURT OF KANSAS 341
In re Wrongful Conviction of Bell
As with his claim under K.S.A. 60-515(a), Bell's 21 months
of imprisonment before the COVID-19 pandemic undermine his
argument that COVID-19 protocols prevented him from filing his
action. And Bell's own statements reveal that he filed late not be-
cause his access to the courts was impaired, but because he did not
know about the new cause of action set forth in K.S.A. 2022 Supp.
60-5004. This ignorance of the law poses no question of fact for a
court to address.
Thus, because Bell has not asserted the existence of any spe-
cific facts that would support the application of equitable tolling,
he has failed to show that the district court erred by failing to apply
the doctrine to his claim. Under the circumstances, the district
court correctly dismissed Bell's case for failure to state a claim.
CONCLUSION
We affirm the district court's dismissal of Bell's case for fail-
ure to state a claim.
Affirmed.
342 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
No. 122,418
STATE OF KANSAS, Appellee, v. JUSTIN W. STEINERT, Appellant.
(529 P.3d 778)
SYLLABUS BY THE COURT
1. STATUTES—Interpretation –Question of Law—Appellate Review. Statutory in-
terpretation presents a question of law over which appellate courts have unlimited
review.
2. CRIMINAL LAW—Motion to Correct Illegal Sentence—File on Direct Appeal.
A defendant may file a motion to correct an illegal sentence under K.S.A. 2022
Supp. 22-3504(a) in an appellate court while on direct appeal.
3. SAME—Illegal-Sentence Claim May Be Raised First Time on Appeal. A chal-
lenge to the classification of a prior conviction and the resulting criminal-history
score presents an illegal-sentence claim that may be raised for the first time on
appeal.
4. SAME—New Rule for Conducting Criminal Prosecutions—Application. A new
rule for conducting criminal prosecutions is to be applied to all cases pending on
direct review or not yet final.
5. SAME—Sentencing—Sentencing Court Retains Jurisdiction to Correct Illegal
Sentence or Clerical Error.
Under K.S.A. 2022 Supp. 21-6820(i), a sentencing
court retains jurisdiction to correct an illegal sentence or clerical error under K.S.A.
22-3504 irrespective of a defendant's appeal.
6. COURTS—Kansas Supreme Court has Power to Take Actions Necessary for the
Administration of Justice. The Kansas Supreme Court has the inherent power to
take actions reasonably necessary for the administration of justice, provided the
exercise of that power in no way contravenes or is inconsistent with the substantive
statutory law.
Review of the judgment of the Court of Appeals in an unpublished opinion filed
June 24, 2022. Appeal from Sedgwick District Court; B
RUCE C. BROWN, judge. Opinion
filed May 26, 2023. Judgment of the Court of Appeals denying the motion to correct
illegal sentence is reversed, and the case is remanded to the district court with directions.
Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause and was
on the briefs for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for
appellee.
The opinion of the court was delivered by
VOL. 317 SUPREME COURT OF KANSAS 343
State v. Steinert
WALL, J.: Under the Kansas Sentencing Guidelines Act, the pre-
sumptive sentence for most felonies is derived from the severity level
of the offense and the defendant's criminal history, which is reflected
in a criminal-history score. See K.S.A. 2022 Supp. 21-6804 and 21-
6805. A separate statute, K.S.A. 2022 Supp. 22-3504, provides that a
sentence is illegal and may be corrected "at any time" if it fails to con-
form to these and other "applicable statutory provision[s]." Kansas ap-
pellate courts commonly review challenges at the intersection of these
statutes when defendants claim their criminal-history score is inaccu-
rate, rendering their sentence illegal.
This case presents such a challenge. After receiving a 71-month
prison sentence for crimes he committed in Wichita, Justin W. Steinert
appealed his sentence to the Court of Appeals, arguing that he should
have been sentenced using a lower criminal-history score. But what
makes this case unique is that Steinert filed his motion to correct an
illegal sentence in the appellate court, not the district court. And, while
his direct appeal was pending, the Legislature added procedures gov-
erning criminal-history challenges raised for the first time on appeal.
See L. 2022, ch. 73, sec. 4; K.S.A. 2022 Supp. 21-6814.
A panel of the Court of Appeals held that a motion to correct an
illegal sentence could not be filed in the appellate court. And it further
suggested that the preservation rule—which generally requires issues
first be raised at the district court to preserve them for appellate court
review—gave the panel discretion to deny review of Steinert's claim.
Even so, the panel reached the merits of Steinert's challenge, reasoning
that the preservation rule is subject to exceptions. The panel then pro-
ceeded to deny Steinert's claim on the merits.
Steinert petitioned our court for review, arguing (1) the panel erred
in holding that an illegal-sentence motion cannot be filed in an appel-
late court, and (2) he was entitled to a remand hearing on the motion
under K.S.A. 2022 Supp. 22-3504. He also argued the recent statutory
amendment reflected in K.S.A. 2022 Supp. 21-6814(d) applies to his
case. And under that amendment, he can submit a journal entry to the
appellate courts showing that his 2016 Arkansas misdemeanor convic-
tion should not have factored into his criminal-history score. The panel
declined to apply this statutory amendment and refused to consider the
purported journal entry.
344 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
We agree with some of Steinert's arguments challenging the pan-
el's decision. First, under our established precedent, appellate courts
have subject matter jurisdiction over an illegal sentence motion raised
for the first time on direct appeal, and such claims are not subject to the
preservation rule. Second, the recent statutory amendment reflected in
K.S.A. 2022 Supp. 21-6814(d) applies to Steinert's appeal because
changes in the law generally apply to cases, like Steinert's, that are
pending on direct review.
Even so, under the facts and unique procedural posture of this case,
prudence dictates that our court exercise judicial restraint by (1) not
deciding whether Steinert may submit the Arkansas journal entry in
support of his claim, and (2) not reaching the merits of his illegal-sen-
tence motion. For one, there is a factual dispute about whether the doc-
ument Steinert submitted is, in fact, a journal entry. Also, at oral argu-
ment, the parties offered differing interpretations of the 2022 amend-
ment to K.S.A. 21-6814(d). But they did not brief these questions of
statutory interpretation. Nor did the panel address them.
Given these unique circumstances, we conclude the district court
is better positioned to resolve the parties' factual dispute and to deter-
mine whether Steinert's criminal history score was calculated improp-
erly, rendering his sentence illegal. Under another recent statutory
amendment reflected in K.S.A. 2022 Supp. 21-6820(i), the district
court has concurrent jurisdiction to hear Steinert's illegal-sentence
claim. And we have the inherent power to take actions reasonably nec-
essary for the administration of justice, including the power to decide
which forum should exercise its concurrent jurisdiction to resolve Stei-
nert's illegal sentence motion.
Thus, we reverse the panel's holding denying Steinert's illegal-sen-
tence motion and remand that claim to the district court to exercise its
concurrent jurisdiction consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
In November 2018, the State charged Steinert with several of-
fenses, including kidnapping. Steinert had allegedly forced a teenager
into his house at gunpoint and then coerced the teenager into taking
scales and a container of marijuana to sell on Steinert's behalf. Steinert
and the State worked out an agreement that allowed him to enter an
Alford plea, named for the 1970 Supreme Court case that permits a
VOL. 317 SUPREME COURT OF KANSAS 345
State v. Steinert
defendant to plead guilty to an offense under a claim of innocence.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970). In exchange for Steinert's plea, the State agreed to dismiss the
kidnapping charge and amend an aggravated-assault charge to one
count of aggravated robbery. The district court then found Steinert
guilty of aggravated robbery and the remaining charges—contributing
to a child's misconduct, distribution of marijuana, and possession of
paraphernalia to distribute or manufacture.
A presentence investigation report (PSI) prepared after Stei-
nert's Alford plea calculated his criminal-history score as H, the
second lowest score, based on two adult nonperson misdemeanor
convictions. One of those convictions was a 2016 Arkansas con-
viction in Cleburne County District Court. The PSI described the
offense as "Theft/Shoplifting" and listed Ark. Code Ann. § 5-36-
116 as the violated statute. At sentencing, Steinert agreed the PSI
was accurate and that his criminal-history score was H. The dis-
trict court imposed a controlling 71-month sentence, and Steinert
timely appealed to the Court of Appeals.
While drafting Steinert's brief, appellate counsel obtained a
purported copy of the journal entry from the 2016 Arkansas con-
viction. That document listed the violated statute alternately as
Ark. Code Ann. § 5-36-116 (the same statute listed on the PSI)
and Ark. Code Ann. § 5-36-102—"Theft/shoplifting" (which was
not listed on the PSI). The space identifying Steinert's attorney in
the matter was also left blank. Appellate counsel believed those
discrepancies could support an illegal-sentence claim, so he
sought to introduce the journal entry into the Court of Appeals
proceedings. The State objected to each of Steinert's attempts to
do so.
First, Steinert attached the journal entry to his appellate brief.
Then, he moved to add the journal entry to the appellate record
under Supreme Court Rule 3.02(d)(4) (2022 Kan. S. Ct. R. at 21).
Chief Judge Arnold-Burger denied that motion, finding that the
journal entry "[w]as not part of the record below" and that Stei-
nert's request "d[id] not comply with rule 3.01." Finally, Steinert
filed a motion to correct an illegal sentence under K.S.A. 2022
Supp. 22-3504 in the Court of Appeals, again attaching the journal
entry.
346 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
That illegal-sentence motion repeated two of the arguments
Steinert had made in his appellate brief. First, Steinert argued the
Arkansas journal entry did not establish his crime of conviction,
so it was impossible to determine whether a comparable Kansas
offense existed. See K.S.A. 2022 Supp. 21-6811(e)(2)(B) (out-of-
state misdemeanor convictions may be used to calculate a criminal
history score only if there is a comparable Kansas offense). Sec-
ond, Steinert argued the journal entry showed he had not been rep-
resented by counsel. See State v. Youngblood, 288 Kan. 659, Syl.
¶ 3, 206 P.3d 518 (2009) (uncounseled misdemeanor convictions
generally cannot be used to enhance a sentence in a different case).
But Steinert's motion did more than just rehash the illegal-
sentence arguments from his appellate brief. Steinert requested the
Court of Appeals remand to the district court under K.S.A. 2021
Supp. 22-3504(a), which provides that a "defendant shall have a
right to a hearing" on an illegal-sentence motion "[u]nless the mo-
tion and the files and records of the case conclusively show that
the defendant is entitled to no relief." As Steinert explained, re-
mand to the district court was necessary because he bore the bur-
den of proving a criminal-history error on appeal under K.S.A.
2022 Supp. 21-6814(c), but he had been prevented from introduc-
ing into the appellate proceedings the Arkansas journal entry es-
sential to proving his claim. See K.S.A. 2022 Supp. 21-6814(c)
("If the offender later challenges such offender's criminal history,
which has been previously established, the burden of proof shall
shift to the offender to prove such offender's criminal history by a
preponderance of the evidence."). Although Steinert did not cite
State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), the pro-
cedure he proposed was like the one set out in that case for ad-
dressing ineffective assistance of counsel claims raised on direct
appeal. See 239 Kan. 117, Syl. ¶ 2 ("When appellate counsel in a
criminal case desires to raise the issue of ineffective assistance of
counsel and that issue has never been ruled upon by the trial court,
defendant may seek a remand of the case to the trial court for an
initial determination of the issue.").
The Court of Appeals panel denied relief. State v. Steinert, No.
122,418, 2022 WL 2286921, at *5, 11 (Kan. App. 2022) (un-
published opinion). The panel held that a defendant may not file a
VOL. 317 SUPREME COURT OF KANSAS 347
State v. Steinert
K.S.A. 22-3504 motion in an appellate court. It reasoned: "To say
that an illegal sentence may be corrected 'at any time' does not
mean that one may file that motion 'in any court.' We are a court
of review, not a fact-finding court." 2022 WL 2286921, at *5. It
also held that the Arkansas journal entry was not part of the ap-
pellate record, and without the benefit of that document, Steinert
had not met his burden to show that his criminal-history score was
incorrect. 2022 WL 2286921, at *5. The panel also rejected the
other challenges Steinert had raised in his appellate brief, but those
issues are not before us.
One week after the panel issued its opinion, a statutory
amendment establishing procedures for challenging criminal his-
tory for the first time on appeal went into effect. See L. 2022, ch.
73, § 4, eff. July 1, 2022. The text of the amendment provides:
"(d) If an offender raises a challenge to the offender's criminal history for
the first time on appeal, the offender shall have the burden of designating a record
that shows prejudicial error. . . . In designating a record that shows prejudicial
error, the offender may provide the appellate court with journal entries of the
challenged criminal history that were not originally attached to the criminal his-
tory worksheet." K.S.A. 2022 Supp. 21-6814(d).
On the same day the amendment became effective, Steinert asked
the panel to reconsider or modify its decision. In Steinert's view,
the amendment applied retroactively and required the panel to
consider the Arkansas journal entry when evaluating the merits of
his illegal-sentence claims. The panel denied Steinert's request
without analysis.
Steinert then petitioned our court for review, and we agreed to
review two issues: (1) whether the panel had erred when it denied
Steinert's K.S.A. 22-3504 motion on the grounds that illegal-sen-
tence motions cannot be filed in appellate courts; and (2) whether
the 2022 amendment to K.S.A. 21-6814 applied to Steinert's ap-
peal.
While Steinert's petition for review was pending, he also filed
a motion in our court to introduce the Arkansas journal entry. He
cited the recent statutory amendment as support for his motion. In
response, the State insisted that the document Steinert attached to
his motion was not a journal entry. Steinert filed an affidavit as-
348 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
serting otherwise from an employee of the Arkansas county's dis-
trict court. We took the motion under advisement. Neither party
filed a supplemental brief. We held oral argument in this matter
on February 3, 2023. Jurisdiction is proper. See K.S.A. 60-
2101(b) (providing for Kansas Supreme Court review of Court of
Appeals decisions).
ANALYSIS
Steinert advances two arguments. First, he contends the panel
erred by denying his K.S.A. 22-3504 motion. He claims a defend-
ant may file that type of motion in an appellate court and that
K.S.A. 2022 Supp. 22-3504 establishes a Van Cleave-like proce-
dure for a remand hearing on an illegal-sentence claim. Second,
he argues K.S.A. 2022 Supp. 21-6814(d) applies to his case and
allows him to submit the Arkansas journal entry to the appellate
courts. In his view, that journal entry shows his criminal-history
score was wrongly calculated, rendering his sentence illegal. We
address each argument in turn.
I. Kansas Law Permits a Defendant to File a Motion to Correct
an Illegal Sentence in an Appellate Court on Direct Appeal,
but the Question of Remand Is Governed by K.S.A. 2022
Supp. 21-6814(d), not K.S.A. 2022 Supp. 22-3504(a)
The panel held that K.S.A. 22-3504 prohibits a defendant
from filing an illegal-sentence motion in an appellate court. Stei-
nert, 2022 WL 2286921, at *5. Steinert argues that holding con-
flicts with our decision in State v. Keel, 302 Kan. 560, 571, 357
P.3d 251 (2015). He also claims he is entitled to a remand hearing
in the district court under K.S.A. 2022 Supp. 22-3504(a), which
states that a "defendant shall have a right to a hearing" on an illegal
sentence motion "[u]nless the motion and the files and records of
the case conclusively show that the defendant is entitled to no re-
lief." In Steinert's view, the Arkansas journal entry at least raises
questions about his crime of conviction and whether he was rep-
resented by counsel, so it has not been conclusively shown that he
is entitled to no relief.
VOL. 317 SUPREME COURT OF KANSAS 349
State v. Steinert
Resolving these issues requires us to interpret K.S.A. 2022
Supp. 22-3504. Statutory interpretation presents a question of law
over which we have unlimited review. Thus, we need not defer to
the panel's conclusions. State v. Stoll, 312 Kan. 726, 736, 480 P.3d
158 (2021).
To resolve Steinert's first issue on appeal, we consider
whether the panel erred by holding that a defendant cannot file a
motion to correct an illegal sentence in the appellate courts while
on direct appeal. Then, we address Steinert's argument that re-
mand is governed by, and authorized under, K.S.A. 2022 Supp.
22-3504(a).
A. Kansas Law Permits a Defendant to File a Motion to Cor-
rect an Illegal Sentence in an Appellate Court on Direct
Appeal
We agree with the first part of Steinert's argument: the panel's
holding that a defendant may not file a K.S.A. 22-3504 motion in
the appellate courts on direct appeal conflicts with our precedent.
In Keel, which the panel did not address, a defendant filed a
K.S.A. 22-3504 motion in our court after we had granted his peti-
tion for review on other issues raised in his direct appeal. Citing
K.S.A. 22-3504(1)—which authorized a court to correct an illegal
sentence "at any time"—we held that the defendant's motion was
properly before our court. Keel, 302 Kan. at 571. That holding was
a corollary to State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015), decided a few months before Keel. In Dickey, we held that
because K.S.A. 22-3504(1) authorized a court to correct an illegal
sentence "at any time," a challenge to the classification of a prior
conviction and the resulting criminal-history score could be raised
for the first time on appeal because it presented an illegal-sentence
claim. 301 Kan. 1018, Syl. ¶¶ 1, 3. Based on those precedents, we
conclude that the panel erred.
Further, we take issue with the panel's suggestion that both
subject matter jurisdiction and the preservation rule would ordi-
narily preclude review of Steinert's illegal-sentence motion raised
on direct appeal. After describing Steinert's challenge to his crim-
inal history, the panel indicated that statutory limits to appellate
350 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
jurisdiction would ordinarily preclude review because Steinert en-
tered an Alford plea and received a presumptive sentence. Steinert,
2022 WL 2286921, at * 2; see also K.S.A. 2022 Supp. 22-3602(a)
(limiting jurisdiction to review an appeal from a judgment of con-
viction upon a guilty or no contest plea); K.S.A. 2022 Supp. 21-
6820(c) (foreclosing appellate review of a presumptive sentence
for the crime or any sentence resulting from an agreement between
the State and the defendant approved on the record).
And because Steinert failed to first raise his illegal sentence
claim before the district court, the panel also suggested the preser-
vation rule could have foreclosed review of Steinert's motion.
2022 WL 2286921, at * 2; see State v. Keys, 315 Kan. 690, 696,
510 P.3d 706 (2022) ("Generally, issues not raised before the dis-
trict court cannot be raised on appeal."). But citing State v. Gray,
311 Kan. 164, 170, 459 P.3d 165 (2020), and asserting that our
court "liberally construes the laws in this context," the panel pur-
ported to use its discretion to reach the merits of Steinert's chal-
lenge. Steinert, 2022 WL 2286921, at * 2.
We disagree with the panel's jurisdictional analysis. First, ju-
risdiction is not a prudential doctrine. So, if the panel believed it
lacked subject matter jurisdiction to review Steinert's illegal sen-
tence claim, then it should not have proceeded to the merits. In re
Estate of Lentz, 312 Kan. 490, 504, 476 P.3d 1151 (2020) ("[O]nce
a Court of Appeals panel concludes jurisdiction is lacking, the bet-
ter practice is not to proceed to opine about the merits of the is-
sues.").
Second, and more important, we have held that appellate ju-
risdiction over an illegal sentence motion is inherent in K.S.A. 22-
3504's language authorizing a court to correct an illegal sentence
"at any time." See State v. Clark, 313 Kan. 556, 568, 486 P.3d 591
(2021); State v. McCroy, 313 Kan. 531, 535-36, 486 P.3d 618
(2021). As noted, our precedent further establishes that the exer-
cise of this appellate jurisdiction is proper even when a defendant
raises the illegal sentence motion for the first time on direct ap-
peal. See Keel, 302 Kan. at 571. And we have also held that K.S.A.
22-3504 grants appellate courts subject matter jurisdiction over il-
legal sentence claims, even when (1) the sentence is the result of
a plea agreement approved by the district court on the record; or
VOL. 317 SUPREME COURT OF KANSAS 351
State v. Steinert
(2) the sentence is within the presumptive sentence for the crime.
See State v. Jones, 293 Kan. 757, 761, 268 P.3d 491 (2012) (ap-
pellate jurisdiction proper under K.S.A. 22-3504 even though sen-
tence was the result of plea); see also State v. Morningstar, 299
Kan. 1236, Syl. ¶ 1, 329 P.3d 1093 (2014) (Appellate courts have
jurisdiction to determine whether district court had statutory au-
thority to impose a consecutive sentence even when a defendant
receives a presumptive sentence, which is generally not appeala-
ble.).
Finally, as discussed below, the Legislature amended K.S.A.
21-6814 in 2022 to establish procedures governing a criminal-his-
tory challenge raised for the first time on appeal. K.S.A. 2022
Supp. 21-6814(d). This amendment presumes the existence of ap-
pellate court jurisdiction over such challenges. And here, Stei-
nert's criminal-history challenge serves as the foundation for his
illegal sentence motion.
We also take issue with the panel's analysis of the preservation
rule in the context of an illegal-sentence motion. First, the panel's
reliance on Gray is misplaced. There, the defendant argued for the
first time on appeal that the identical-offense doctrine applied to
his first-degree murder conviction. Gray, 311 Kan. at 169; see also
State v. Thompson, 287 Kan. 238, Syl. ¶ 3, 200 P.3d 22 (2009)
(when two or more offenses are identical, a person may be sen-
tenced only to the least severe punishment prescribed for any of
them). We acknowledged our three well-established exceptions to
the preservation rule—see State v. Godfrey, 301 Kan. 1041, 1043,
350 P.3d 1068 (2015)—but then made the discretionary decision
not to reach the merits. See Gray, 311 Kan. at 170 ("The decision
to review an unpreserved claim under an exception is a prudential
one. Even if an exception would support a decision to review a
new claim, we have no obligation to do so. [Citations omitted.]").
The preservation rule applied because the defendant in Gray did
not raise an illegal-sentence claim. Steinert, on the other hand, did.
See Dickey, 301 Kan. 1018, Syl. ¶¶ 1, 3 (A challenge to the clas-
sification of a prior conviction and the resulting criminal-history
score presents an illegal-sentence claim.). And our precedent
firmly establishes that a defendant may raise an illegal-sentence
claim for the first time on appeal, notwithstanding general rules of
352 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
issue preservation. See 301 Kan. 1018, Syl. ¶ 1; see also State v.
Eubanks, 316 Kan. 355, 360, 516 P.3d 116 (2022); State v. Juili-
ano, 315 Kan. 76, 79-80, 504 P.3d 399 (2022) (citing State v. Sar-
tin, 310 Kan. 367, 375, 446 P.3d 1068 [2019]; State v. Johnson,
309 Kan. 992, 995, 441 P.3d 1036 [2019]). Thus, we disagree with
the panel's suggestion that it could have made a discretionary de-
cision to apply the preservation rule to deny Steinert's criminal-
history challenge.
B. The Legal Standard for Remand Is Governed by K.S.A.
2022 Supp. 21-6814(d), not K.S.A. 2022 Supp. 22-3504
Even so, we disagree with the second part of Steinert's argu-
ment—that K.S.A. 2022 Supp. 22-3504 establishes a Van Cleave-
like procedure for illegal-sentence claims. As we have explained,
Steinert grounds his argument in the statutory text. Under K.S.A.
2022 Supp. 22-3504(a), a "defendant shall have a right to a hear-
ing" on an illegal-sentence motion "[u]nless the motion and the
files and records of the case conclusively show that the defendant
is entitled to no relief." In Steinert's view, the Arkansas journal
entry raises a question about whether the conviction should have
factored into his criminal-history score, so it cannot be said that
the documents of his case conclusively show he is entitled to no
relief. Thus, he argues K.S.A. 2022 Supp. 22-3504 entitles him to
a remand for a hearing on his motion.
While Steinert's textual argument has some appeal, his inter-
pretation of K.S.A. 2022 Supp. 22-3504 is untenable given the
2022 amendment to K.S.A. 21-6814. Under that amendment,
when an offender raises a criminal-history challenge for the first
time on appeal, "the offender may provide the appellate court with
journal entries of the challenged criminal history," and "[t]he court
may remand the case if there is a reasonable question as to whether
prejudicial error exists." K.S.A. 2022 Supp. 21-6814(d). In other
words, the 2022 amendment to K.S.A. 21-6814 specifically ad-
dresses the issue of remand in cases in which a defendant raises a
criminal-history challenge for the first time on appeal. And as es-
tablished in the analysis of Issue II below, the amendment applies
to Steinert's challenge even though it became effective a week af-
ter the panel's decision.
VOL. 317 SUPREME COURT OF KANSAS 353
State v. Steinert
Thus, even if K.S.A. 2022 Supp. 22-3504(a) could be con-
strued as addressing remand to the district court, K.S.A. 2022
Supp. 21-6814(d) would control as the more specific statute. See
In re Tax Exemption Application of Mental Health Ass'n of the
Heartland, 289 Kan. 1209, 1215, 221 P.3d 580 (2009) (a specific
statute controls over a general statute); Bruce v. Kelly, 316 Kan.
218, 255, 514 P.3d 1007 (2022) ("[W]hen statutory provisions are
in conflict, the more specific provision generally prevails.").
K.S.A. 2022 Supp. 22-3504 does not address remand specifically,
only a right to a hearing generally. Nor is the statute limited to
instances when an illegal-sentence claim is raised for the first time
on appeal. K.S.A. 2022 Supp. 21-6814(d), on the other hand, pro-
vides a standard for remand precisely in the situation this case pre-
sents: Steinert has challenged his criminal history for the first time
on appeal and provided the appellate court with a purported jour-
nal entry of the challenged criminal history.
Thus, when a criminal-history challenge is raised for the first
time on appeal, the legal standard for remand is governed by
K.S.A. 2022 Supp. 21-6814(d), rather than K.S.A. 2022 Supp. 22-
3504(a).
II. The 2022 Amendment to K.S.A. 21-6814 Applies Because It
Became Effective While Steinert's Direct Appeal Was Pend-
ing; but Under the Circumstances, the Contested Legal and
Factual Issues Should First Be Resolved in the District
Court, Which Has Concurrent Jurisdiction Under K.S.A.
2022 Supp. 21-6820(i).
As noted, Steinert's several attempts to introduce the Arkansas
journal entry into the Court of Appeals proceedings were consist-
ently rebuffed. And when Steinert asked the panel to reconsider
or modify its decision based on K.S.A. 2022 Supp. 21-6814(d),
the panel denied his motion without analysis.
Now before our court, Steinert continues to insist that K.S.A.
2022 Supp. 21-6814 allows him to submit the Arkansas journal
entry to the appellate courts. Under subsection (d) of that statute,
an offender who, like Steinert, challenges criminal history for the
first time on appeal "may provide the appellate court with journal
entries of the challenged criminal history that were not originally
354 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
attached to the criminal history worksheet." K.S.A. 2022 Supp.
21-6814(d). Steinert acknowledges the statute came into effect af-
ter the Court of Appeals panel denied him relief, but he argues that
it nonetheless applies because it is procedural and remedial. See
White v. State, 308 Kan. 491, 499, 421 P.3d 718 (2018) (statutory
amendments that are "procedural or remedial" may be applied ret-
roactively).
Pressed at oral argument on the relief he seeks, Steinert asked
us to reach the merits of his illegal-sentence claim and to consider
the Arkansas journal entry when doing so. Steinert believes the
journal entry can support two, independent illegal-sentence
claims. He bases his first illegal-sentence claim on K.S.A. 2022
Supp. 21-6811, which governs the calculation of criminal-history
scores. Under one of its provisions, K.S.A. 2022 Supp. 21-
6811(e)(2)(B), an out-of-state misdemeanor "shall not be used in
classifying the offender's criminal history" if "Kansas does not
have a comparable offense." Steinert points out that the purported
journal entry alternately lists two Arkansas statutes, Ark. Code
Ann. § 5-36-102 and Ark. Code Ann. § 5-36-116, as the statutes
he violated. According to Steinert, neither statute provides the el-
ements of a criminal offense, so it is unclear what Arkansas of-
fense Steinert was convicted of, let alone whether a comparable
Kansas offense exists.
Steinert then relies on Youngblood for his second illegal-sen-
tence claim. There, we held that, because a "person accused of a
misdemeanor has a Sixth Amendment right to counsel if the sen-
tence to be imposed upon conviction includes a term of imprison-
ment," an uncounseled misdemeanor conviction cannot be used to
later calculate criminal history unless the person properly waived
that right. Youngblood, 288 Kan. 659, Syl. ¶¶ 2, 3. Steinert draws
our attention to the blank space where the purported journal entry
should have identified the attorney representing him. He contends
this omission shows he was not represented by counsel, so the
conviction should not have factored into his criminal-history
score.
In response, the State insists the document Steinert has pro-
vided is not a journal entry but a "record of actions," which merely
summarizes the important events in the Arkansas proceedings.
VOL. 317 SUPREME COURT OF KANSAS 355
State v. Steinert
And, of course, the State disputes the merits of Steinert's illegal-sen-
tence claims.
We agree with Steinert that K.S.A. 2022 Supp. 21-6814(d) applies
to his claim, but not for the same reason he articulates. Steinert con-
tends the amendment applies retroactively because it is procedural and
remedial. But "new rules for conducting criminal prosecutions gener-
ally apply to cases pending on direct review or not yet final." State v.
Thurber, 308 Kan. 140, 225, 420 P.3d 389 (2018). And K.S.A. 2022
Supp. 21-6814 became effective while Steinert's direct appeal was
pending. Thus, a court's reliance on the statutory amendment does not
constitute a retroactive application of the law.
Though we agree K.S.A. 2022 Supp. 21-6814(d) applies to Stei-
nert's direct appeal, that conclusion does not resolve the issues in this
case. We have already noted that there is a factual dispute as to whether
the document Steinert submitted is, in fact, a journal entry. But it has
also become clear that the parties hold differing views regarding the
proper interpretation of K.S.A. 2022 Supp. 21-6814(d). For example,
the statute allows both the defendant and State to "provide the appellate
court with journal entries" that address the defendant's criminal history
challenge. K.S.A. 2022 Supp. 21-6814(d). But does that mean a party
may submit out-of-state journal entries? And may the parties submit
only journal entries? If so, can the court consider and rely on the affi-
davit Steinert submitted to our court? The statute also permits the ap-
pellate court to "take judicial notice of such journal entries, complaints,
plea agreements, jury instructions and verdict forms for Kansas con-
victions when determining whether prejudicial error exists." K.S.A.
2022 Supp. 21-6814(d). Does that language prevent the appellate court
from taking judicial notice of similar documents from out-of-state con-
victions? And what does it mean for there to be "a reasonable question
as to whether prejudicial error exists," which is the statutory standard
for remand to the district court? K.S.A. 2022 Supp. 21-6814(d).
To decide whether the documents Steinert submitted are properly
before the court, and to reach the merits of Steinert's challenges to the
calculation of his criminal-history, an appellate court must resolve
these outstanding factual and legal questions. But the parties did not
brief the questions related to the proper statutory interpretation of
K.S.A. 2022 Supp. 21-6814(d), in part, because they did not take shape
356 SUPREME COURT OF KANSAS VOL. 317
State v. Steinert
until oral argument. And the panel did not address the statutory amend-
ment in its opinion. We hesitate to resolve disputed interpretations of a
newly amended statute without the benefit of the parties' briefing or the
analysis of the panel.
Given these circumstances, we conclude the district court is better
positioned to resolve the claims in Steinert's illegal-sentence motion.
Under a newly enacted provision of K.S.A. 21-6820, the district
court—in this case, the Sedgwick County District Court—has concur-
rent jurisdiction over Steinert's illegal-sentence claims. See K.S.A.
2022 Supp. 21-6820(i) ("The sentencing court shall retain authority ir-
respective of any appeal to correct an illegal sentence or clerical error
pursuant to K.S.A. 22-3504."). And that amendment applies for the
same reason the 2022 amendment to K.S.A. 21-6814 applies—the stat-
utory amendment became effective while Steinert's direct appeal was
pending. See 308 Kan. at 225 (changes in the law, including statutory
amendments, generally apply on direct appeal).
Our court has the inherent power to take actions "'reasonably nec-
essary for the administration of justice, provided these powers in no
way contravene or are inconsistent with the substantive statutory law.'"
Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372,
419, 197 P.3d 370 (2008); see also Kan. Const. art. 3, § 1 ("The su-
preme court shall have general administrative authority over all courts
in this state."). When, as here, the Legislature has granted district courts
concurrent jurisdiction, we have inherent authority to decide which fo-
rum should exercise that jurisdiction. And such decision-making is
wholly consistent with the concurrent jurisdictional scheme the Legis-
lature contemplated in K.S.A. 2022 Supp. 21-6820(i). For the reasons
outlined above, we conclude that the district court is best positioned to
adjudicate the parties' fact disputes and to resolve the legal question of
whether Steinert's criminal history score deviates from the applicable
statutes, rendering his sentence illegal. And we reserve for another day
the various questions related to the proper interpretation of K.S.A.
2022 Supp. 21-6814(d).
CONCLUSION
For the reasons outlined in this opinion, we reverse the panel's
holding denying Steinert's illegal-sentence claim and remand that issue
to the district court to exercise its concurrent jurisdiction consistent
VOL. 317 SUPREME COURT OF KANSAS 357
State v. Steinert
with this opinion. We deny, as moot, Steinert's motion to add the Ar-
kansas journal entry before our court.
Judgment of the Court of Appeals denying the motion to correct
illegal sentence is reversed, and the case is remanded to the district
court with directions.
358 SUPREME COURT OF KANSAS VOL. 317
Sierra Club v. Stanek
No. 123,023
SIERRA CLUB, Petitioner/Appellee, v. JANET STANEK, in her
Official Capacity as Secretary of the Kansas Department of
Health and Environment, and the
DEPARTMENT OF HEALTH AND
ENVIRONMENT, an Agency of the State of Kansas, Respond-
ents/Appellees, and H
USKY HOGS, L.L.C., PRAIRIE DOG PORK
L.L.C., ROLLING HILLS PORK, L.L.C., and STILLWATER SWINE,
L.L.C., Intervenors/Appellants.
(529 P.3d 1271)
SYLLABUS BY THE COURT
CIVIL PROCEDURE—Moot Case—Actual Controversy has Ended. A case is
moot when the actual controversy has ended and the only judgment that
could be entered would be ineffectual for any purpose and would not impact
any of the parties' rights.
Review of the judgment of the Court of Appeals in an unpublished opinion
filed April 1, 2022. Appeal from Shawnee District Court; RICHARD D.
ANDERSON, judge. Opinion filed June 2, 2023. Judgment of the Court of Appeals
reversing the district court is reversed, and the appeal is dismissed.
Clayton J. Kaiser, of Foulston Siefkin LLP, of Wichita, argued the cause,
and Gary L. Ayers and David M. Traster, of the same firm, were with him on the
briefs for intervenors/appellants.
Timothy J. Laughlin, of Schoonover & Moriarty, LLC, of Olathe, argued
the cause, and Robert V. Eye, of Robert V. Eye Law Office, LLC, of Lawrence,
was with him on the briefs for petitioner/appellee.
Arthur S. Chalmers, assistant attorney general, argued the cause, and M.J.
Willoughby, assistant attorney general, and Derek Schmidt, attorney general,
were with him on the briefs for respondents/ appellees.
The opinion of the court was delivered by
STEGALL, J.: Sierra Club challenges permits issued by the
Kansas Department of Health and Environment in 2017 and 2018
to four different swine confined animal feeding operations, some-
times referred to as CAFOs. Because current circumstances have
rendered Sierra Club's legal challenges moot, we dismiss the case.
Husky Hogs, L.L.C. owned a swine facility in Phillips
County, Kansas, which burned down in June of 2017. Soon after,
Husky Hogs formulated a plan to rebuild and expand the swine
operation. An important limit on any CAFO is found in K.S.A.
VOL. 317 SUPREME COURT OF KANSAS 359
Sierra Club v. Stanek
65-1,180—which establishes minimum setbacks from surface wa-
ter:
"(a) The department shall not approve a permit for construction of a new
swine facility or expansion of an existing swine facility unless the swine waste
management system for the facility:
. . . .
(3) . . . is located: (A) Not less than 500 feet from any surface water if the
facility has an animal unit capacity of 3,725 or more; (B) not less than 250 feet
from any surface water if the facility has an animal unit capacity of 1,000 to
3,724; or (C) not less than 100 feet from any surface water if the facility has an
animal unit capacity of under 1,000."
Because the Husky Hogs' facility, in its pre-fire configuration,
was located 250 feet from Prairie Dog Creek, it was limited to a
maximum of 3,724 animal units. Given this reality and their desire
to carry more animal units, the rebuild planners formed a new lim-
ited liability corporation named Prairie Dog Pork, L.L.C. Husky
Hogs and other landowners then executed a quitclaim deed grant-
ing Prairie Dog Pork a portion of the Husky Hogs' property. Then,
in 2017, each L.L.C., separately and independently, applied for
and was ultimately granted a permit from KDHE. These 2017 per-
mits were valid through December 10, 2022.
Sierra Club protested, publicly commented on, and opposed
KDHE's decision at every opportunity, arguing that Husky Hogs
and Prairie Dog Pork were not legally "separate facilities" and
therefore any permits allowing the two facilities to carry an aggre-
gate of more than 3,724 animal units would violate the statutory
setback requirements.
At about that time, the same group of landowners had also
created two additional L.L.C.s in order to further grow their car-
rying capacities. They formed C & J Swine L.L.C. (doing business
as Rolling Hills Pork, L.L.C.) and Stillwater Swine, L.L.C. These
L.L.C.s were created to operate CAFOs in Norton County and—
similar to Husky Hogs and Prairie Dog Pork—they were located
on adjoining land within 250 feet of surface water. Rolling Hills
Pork and Stillwater Swine also applied for and were ultimately
given permits from KDHE. These 2018 Permits were valid
through April 26, 2023, and May 24, 2023. Sierra Club again pro-
tested, publicly commented on, and opposed KDHE's decision at
every appropriate administrative step, arguing that the CAFOs
360 SUPREME COURT OF KANSAS VOL. 317
Sierra Club v. Stanek
were not legally "separate facilities," and therefore the permits
would violate the setback requirements for land carrying more
than 3,724 animal units.
After the issuance of the 2017 and 2018 permits, Sierra Club
filed this lawsuit. Relevant to today's decision, Sierra Club alleged
the permits issued by KDHE to the four CAFOs violated the sur-
face water setback requirements of K.S.A. 65-1,180. In 2019, Si-
erra Club prevailed in the district court. Noticing the obvious
gamesmanship the CAFOs had undertaken to avoid the setback
requirements, the district court held that because the CAFOs were
self-contained in two geographic areas (one in Phillips County and
one in Norton County) with contiguous borders, the 2017 and
2018 permits were unlawful. Which is to say that even though the
CAFOs were distinct legal entities, they were effectively only one
CAFO on each geographic footprint. The district court's ruling
was bolstered considerably by one of KDHE's then-existing regu-
lations which stated that CAFO facilities would not be considered
separate facilities if they shared a common property line. See
K.A.R. 28-18a-4(d) (2008 Supp.). The district court remanded the
matter to KDHE and the CAFOs appealed.
While the appeal from the district court's decision was pend-
ing, three critical changes occurred. First, the CAFOs deeded
small strips of land across each geographic footprint to third-party
L.L.C.s. In other words, they removed the shared property line to
avoid the legal impact of K.A.R. 28-18a-4(d) (2008 Supp.). In
2021, KDHE also amended K.A.R. 28-18a-4(d) to remove any
reference to a "contiguous ownership boundary." Following the
amendment, the regulation only required separate CAFOs to have
separate waste management systems. And finally, in light of the
district court's ruling and the work-arounds described above, the
CAFOs sought new permits in lieu of the 2017 and 2018 permits.
So, in 2021, KDHE issued to the CAFOs four brand new permits
which reflected both the new legal descriptions of the four facili-
ties at issue as well as describing the newly required separate
waste management systems.
Nonetheless, Sierra Club continued to defend the appeal on
the grounds that the 2017 and 2018 permits were unlawful—while
at the same time the CAFOs were arguing that Sierra Club lacked
VOL. 317 SUPREME COURT OF KANSAS 361
Sierra Club v. Stanek
standing to bring its claims in the first place. In this factual and
procedural posture, the case reached the Court of Appeals. The
Court of Appeals panel ended up agreeing with the CAFOs on the
question of associational standing. As such, the Court of Appeals
remanded the case to the district court with directions to dismiss
the KJRA petition and "reinstate" the 2017 and 2018 permits
(which were no longer operational). Sierra Club v. Stanek, No.
123,023, 2022 WL 983563, at *1 (Kan. App. 2022) (unpublished
opinion).
Critically, along the way to its standing determination, the
Court of Appeals ruled the case was not moot:
"KDHE has failed to clearly and convincingly show '"the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any
purpose, and it would not impact any of the parties' rights."' [State v. Roat,] 311
Kan. at 592. For these reasons, we find the issues on this appeal are not moot."
2022 WL 983563, at *13.
This was error.
The Kansas case-or-controversy requirement insists that Kan-
sas courts do not consider moot questions. See Baker v. Hayden,
313 Kan. 667, 672, 490 P.3d 1164 (2021). A case is considered
moot when a court determines that "'it is clearly and convincingly
shown the actual controversy has ended, the only judgment that
could be entered would be ineffectual for any purpose, and it
would not impact any of the parties' rights.'" State v. Roat, 311
Kan. 581, 584, 466 P.3d 439 (2020). Mootness can occur when,
over the course of litigation, something changes that renders any
judicial decision ineffectual to impact the rights and interests of
the parties before it. 311 Kan. at 596. Kansas courts do not render
advisory opinions. State v. Cheever, 306 Kan. 760, 786, 402 P.3d
1126 (2017) ("Because the Kansas Constitution's framework
'limit[s] the judicial power to actual cases and controversies,' Kan-
sas courts do not have the power to give advisory opinions."), ab-
rogated on other grounds by State v. Boothby, 310 Kan. 619, 448
P.3d 416 (2019); NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan.
529, 532, 608 P.2d 920 (1980) (A "court is without constitutional
authority to render advisory opinions," because "[s]uch an opinion
would go beyond the limits of determining an actual case or con-
troversy and would violate the doctrine of separation of powers.").
362 SUPREME COURT OF KANSAS VOL. 317
Sierra Club v. Stanek
Here, no party has challenged or disputed the ongoing validity
of the 2021 permits. All parties agree that the CAFOs currently
operate under the 2021 permits and that the 2017 and 2018 permits
are inoperative. And yet, the only issues on appeal concern the
2017 and 2018 permits. Further, at oral argument before this court,
the CAFOs clearly took the position that they are not asking us for
the symbolic reinstatement of the 2017 and 2018 permits to allow
them the option of removing the strips of land inserted between
the facilities. The Court of Appeals improperly clouded the doc-
trine of mootness with its own notions of fundamental fairness
when it observed that not addressing the merits of the dispute over
the 2017 and 2018 permits would
"deprive Permittees of their opportunity to seek reinstatement of their original
permits. While it is true that Permittees managed to avoid the consequences of
the district court's unfavorable interpretation of K.A.R. 28-18a-4(d) by inserting
a buffer between their facilities, that solution should not cost Permittees the right
to appeal their permits for adjacent facilities. And while Permittees could avoid
the district court's interpretation of K.A.R. 28-18a-4(d) by reapplying for a per-
mit now that the new regulation is in effect, they should not have to apply for a
new or modified permit if they are already entitled to the permits as originally
issued." Sierra Club, 2022 WL 983563, at *12.
There may be limited exceptions to our mootness doctrines.
For example, we have discussed the possibility of considering the
merits of issues capable of repetition or presenting concerns of
public importance. Roat, 311 Kan. at 585-90. But see Roat, 311
Kan. at 603-04 (Stegall, J., concurring) (endorsing a jurisdictional
approach to mootness, suggesting that when a case or controversy
has ended, a court's jurisdiction and a party's standing, must also
end); State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888-98,
179 P.3d 366 (2008) (there is no live case or controversy when an
issue is moot); Miller v. Insurance Management Assocs., Inc., 249
Kan. 102, 109-10, 815 P.2d 89 (1991) (mootness is a jurisdictional
consideration); Graves v. State Board of Pharmacy, 188 Kan. 194,
197, 362 P.2d 66 (1961) (A trial court "had no authority to enter
any judgment other than a dismissal of the action" when an issue
was moot.).
But setting aside thornier questions of jurisdiction and allow-
ing that certain exceptions to the mootness doctrine may exist, we
are confident that a sense of unfairness to the prevailing party is
VOL. 317 SUPREME COURT OF KANSAS 363
Sierra Club v. Stanek
not one of them. The CAFOs do not get to have their valid 2021
permits and their advisory opinion too. Courts in Kansas do not
have the power to correct abstract or theoretical wrongs, only real
ones. And any wrongs Sierra Club may have suffered due to the
2017 and 2018 permits, it will continue to suffer under the 2021
permits regardless of anything we might say in this case.
Instead, the parties may litigate their actual dispute in other
cases and administrative forums involving the operational 2021
permits (and potential successor permits). These venues are where
the live controversy now resides. Any suggestion to the contrary
merely encourages walking-dead arguments which "try to put
flesh onto the skeleton of a hypothetical . . . claim." Roat, 311 Kan.
at 597.
In sum, the only question pending before both the district
court and the Court of Appeals was the validity of the 2017 and
2018 permits. But the CAFOs are no longer operating under the
2017 and 2018 permits—and they were not when the case was
before the Court of Appeals. By then, the legal boundaries of the
CAFOs were not even the same as the boundaries described in the
2017 and 2018 permits. On top of that, the legal grounding of the
district court ruling under review had substantively changed.
Simply put, there was no longer any actual controversy concern-
ing the 2017 and 2018 permits. There may have been an abstract
argument about them, but that is not sufficient to establish an ac-
tual controversy affecting the parties' rights. Indeed, regardless of
what any court might say about the 2017 and 2018 permits, the
CAFOs would be legally entitled to continue operations under the
current status quo pursuant to their legally obtained and, at least
in this case, unchallenged 2021 permits.
The judgment of the Court of Appeals is reversed, and the ap-
peal is dismissed as moot.
364 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
No. 123,005
STATE OF KANSAS, Appellee, v. EDROY D. TAYLOR JR.,
Appellant.
(530 P.3d 431)
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Restitution Statute Provides Sentencing Court Shall
Order Restitution for Damage or Loss Caused by Crime—Restitution Due
Immediately—Exceptions. Kansas' criminal restitution statute, K.S.A. 2022
Supp. 21-6604(b)(1), provides that a sentencing court shall order restitution,
including damage or loss caused by the defendant's crime. Such restitution
shall be due immediately unless: (1) the sentencing court orders that the
defendant be given a specified time to pay or be allowed to pay in specified
installments; or (2) the sentencing court finds compelling circumstances
that would render restitution unworkable, either in whole or in part.
2. SAME—Restitution Statute—Order Imposing Restitution Is the Rule—
Finding that Restitution Is Unworkable Is the Exception. Kansas' criminal
restitution statute makes clear that an order imposing restitution is the rule
and a finding that restitution is unworkable is the exception.
3. SAME—Challenge to Restitution Order—Burden of Proof on Defendant to
Show Restitution Is Unworkable. When a defendant challenges the worka-
bility of restitution, the burden of proof lies with the defendant to show
compelling circumstances that would render restitution unworkable, either
in whole or in part. To sustain that burden, defendants must generally pre-
sent evidence of their inability to pay when the financial obligation is due.
4. APPEAL AND ERROR—District Court's Review of Workability of Resti-
tution Plan—Appellate Review. An appellate court reviews a district court's
decision on the workability of a restitution plan for an abuse of discretion.
The party asserting error has the burden of showing an abuse of discretion.
5. CRIMINAL LAW—Sentencing—Unsworn Responses May Be Considered
by District Court. While sworn testimony may be more credible than un-
sworn responses, a district court is not precluded from considering—and
even relying on—the responses it has elicited at sentencing.
Review of the judgment of the Court of Appeals in an unpublished opinion
filed August 27, 2021. Appeal from Shawnee District Court; J
ASON GEIER, judge.
Opinion filed June 9, 2023. Judgment of the Court of Appeals affirming the dis-
trict court is affirmed. Judgment of the district court is affirmed.
Caroline M. Zuschek, of Capital Appellate Defender Office, argued the
cause and was on the brief for appellant.
VOL. 317 SUPREME COURT OF KANSAS 365
State v. Taylor
Michael R. Serra, assistant solicitor general, argued the cause, and Michael
J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, were
on the brief for appellee.
The opinion of the court was delivered by
WALL, J.: Edroy D. Taylor Jr. appeals the decision of a Court
of Appeals panel upholding a restitution plan imposed by the dis-
trict court after Taylor pleaded guilty to aggravated robbery of a
vehicle. Under the district court's plan, Taylor owes nearly $2,000
in restitution, payable in monthly installments of $15 while he
serves a 100-month prison sentence. Taylor does not challenge the
total restitution amount. Instead, he argues the payment plan is
unworkable because there is no evidence showing that he could
make the $15 monthly payments while in prison.
But Kansas statutes provide that restitution shall be imposed
and due immediately in criminal cases, unless the district court
orders installment payments or finds compelling circumstances
that would render restitution unworkable, in whole or part. In
other words, restitution is the rule and unworkability is the excep-
tion.
Thus, the burden is on Taylor to come forward with evidence
showing compelling circumstances that would render the $15
monthly payment plan unworkable. Although Taylor told the dis-
trict court he lacked substantial assets at the time of sentencing, he
presented no evidence showing that he would be unable to make
his $15 monthly payments while incarcerated. We therefore hold
that Taylor has not met his burden to prove the restitution plan
unworkable, and we affirm the panel's decision.
FACTS AND PROCEDURAL HISTORY
In March 2020, Taylor pleaded guilty to aggravated burglary
of a vehicle as part of a plea agreement with the State. In exchange
for that guilty plea, the State dismissed two other felonies and a
misdemeanor. The facts underlying those offenses are not relevant
to this appeal. The only dispute here is about the workability of
the district court's restitution plan.
Based on Taylor's criminal history score and the severity of
the crime, Taylor's presumptive sentence under the Kansas Sen-
tencing Guidelines Act was between 114 and 128 months in
366 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
prison. See K.S.A. 2019 Supp. 21-6804(a). But Taylor asked the
district court to depart from the presumptive sentence and impose
a shorter prison term. At a sentencing hearing, the district court
granted Taylor's motion and imposed a 100-month prison sen-
tence. See K.S.A. 2022 Supp. 21-6815(a) (Authorizing a court to
impose a departure sentence for "substantial and compelling rea-
sons.").
After announcing Taylor's prison term, the district court ad-
dressed restitution. The court ordered $1,954.36 in restitution pay-
able to the victim and then asked defense counsel if she wanted to
address Taylor's ability to pay. Defense counsel asked the court to
waive attorney fees and all other fees except restitution, which she
said were substantial and would be difficult to pay. After ques-
tioning Taylor directly, the court found that Taylor had minor chil-
dren he was financially responsible for and that he lacked substan-
tial assets.
The court then solicited recommendations on a payment plan
from the parties. Defense counsel asked to delay restitution pay-
ments until Taylor was released from prison because payments
during incarceration were "totally unworkable." The State disa-
greed and argued that if Taylor could pay about $20 per month
while in prison, restitution would be complete by the time he fin-
ished his 100-month sentence—though the State conceded that it
did not know if such a plan was "feasible or doable." When given
an opportunity to respond, defense counsel declined. The court or-
dered Taylor to pay restitution in installments of $15 per month
starting the next month.
But the next day, Taylor moved to amend the restitution plan.
He again asked for restitution to start upon his release from prison,
arguing that there was "no conceivable way" the plan was worka-
ble given his prison sentence and his present lack of resources. In
response, the State suggested that Taylor could earn money in
prison. The district court denied Taylor's motion, finding that the
evidence showed only that Taylor could not pay restitution in full
at sentencing, not that he would be unable to make limited income
while incarcerated and apply that income towards his monthly
payments.
VOL. 317 SUPREME COURT OF KANSAS 367
State v. Taylor
On appeal to a panel of the Court of Appeals, Taylor argued
the district court had abused its discretion in formulating the pay-
ment plan. In Taylor's view, because no evidence showed he could
pay restitution while incarcerated, the district court's decision had
turned on a factual error. See State v. Levy, 313 Kan. 232, 237,
485 P.3d 605 (2021) (A judicial action based on a factual error is
an abuse of discretion.). The panel disagreed and upheld the pay-
ment plan, emphasizing that under Kansas law, the burden was on
Taylor to present evidence showing that the plan was unworkable.
State v. Taylor, No. 123,005, 2021 WL 3823437, at *2-3 (Kan.
App. 2021) (unpublished opinion). According to the panel, the
only evidence before the district court was Taylor's responses to
the court's questions and his assertion that his prison sentence pro-
hibited him from paying while incarcerated. And in the panel's
view, that evidence failed to establish that the plan was unworka-
ble. 2021 WL 3823437, at *3. The panel also stated that because
the district court had tried "to align Taylor's repayment plan with
the goals of restitution," the plan was not objectively unreasona-
ble. 2021 WL 3823437, at *3. And citing our decision in State v.
Holt, 305 Kan. 839, 844, 390 P.3d 1 (2017), the panel questioned
the evidentiary value of Taylor's colloquy with the district court
because Taylor had not been sworn in as a witness. 2021 WL
3823437, at *3.
We granted Taylor's petition for review and held oral argu-
ments on the matter during our October 2022 docket. Jurisdiction
is proper. See K.S.A. 60-2101(b) (providing for Kansas Supreme
Court review of Court of Appeals decisions).
ANALYSIS
To resolve Taylor's challenge, we first identify the controlling
legal framework and standard of review. Then, we apply that
framework to the dispute at hand and conclude that Taylor failed
to satisfy his burden to show error.
As to the proper legal framework, the Legislature has incor-
porated restitution as a component of criminal sentencing in
K.S.A. 2022 Supp. 21-6604. The district court's authority in ad-
dressing restitution is outlined in subsection (b)(1), which pro-
vides that:
368 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
"[T]he court shall order the defendant to pay restitution, which shall include, but
not be limited to, damage or loss caused by the defendant's crime. Restitution
shall be due immediately unless: (A) The court orders that the defendant be
given a specified time to pay or be allowed to pay in specified installments; or
(B) the court finds compelling circumstances that would render restitution un-
workable, either in whole or in part." K.S.A. 2022 Supp. 21-6604(b)(1).
The plain language reflects that "[r]estitution is the rule and a
finding that restitution is unworkable is the exception." Holt, 305
Kan. at 842. Thus, the burden is on the defendant to show com-
pelling circumstances that would render restitution unworkable, in
whole or part. State v. Meeks, 307 Kan. 813, 816-17, 415 P.3d 400
(2018). To meet that burden, defendants must generally present
evidence of their inability to pay at the time the financial obliga-
tion is due. 307 Kan. 813, Syl. ¶ 2; Holt, 305 Kan. at 842; State v.
Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). Absent that evi-
dence, the restitution order is presumed to be workable.
Whether a district court's plan of restitution is unworkable is
reviewed on appeal for an abuse of discretion. State v. Shank, 304
Kan. 89, 93, 369 P.3d 322 (2016). A district court abuses its dis-
cretion when its decision turns on a legal or factual error or when
its ruling is objectively unreasonable. Meeks, 307 Kan. at 816. Alt-
hough the panel elected to address reasonableness, Taylor has not
argued on appeal that no reasonable person could agree with the
plan. Nor has he argued that a legal error occurred. Instead, Taylor
argues only that the district court committed a factual error. As the
party asserting an abuse of discretion, Taylor has the burden of
establishing error. See State v. Crosby, 312 Kan. 630, 635, 479
P.3d 167 (2021).
A factual error is an abuse of discretion when the record does
not support a factual finding on which a legal conclusion or an
exercise of discretion is based. State v. Wilson, 301 Kan. 403, Syl.
¶ 2, 343 P.3d 102 (2015). Taylor argues that there is no evidentiary
basis to conclude that he could pay any amount in restitution dur-
ing his incarceration. He therefore contends that the district court's
factual finding that he could pay $15 per month is not supported
by substantial competent evidence. And because that factual find-
ing allegedly supported the district court's ultimate legal conclu-
sion that the plan was workable, Taylor believes the district court
abused its discretion. He asks us to vacate the restitution plan and
VOL. 317 SUPREME COURT OF KANSAS 369
State v. Taylor
remand his case to the district court with directions for payments
to begin when he is released from prison or to make payments
contingent upon employment at his correctional facility.
We disagree with Taylor's framing of the argument as one of
factual error. Under the controlling legal framework outlined
above, neither the State nor the district court have the burden to
point to evidence in the record that shows the district court's in-
stallment plan is workable. As the statute and our precedent makes
clear, the burden is on Taylor to present some evidence showing
the plan is unworkable. Meeks, 307 Kan. 813, Syl. ¶ 2. So we must
ask, as the panel did, whether Taylor's evidence establishes that
the plan is unworkable.
As the panel pointed out, the evidence presented by Taylor is
slim. In response to questions posed by the district court about his
financial circumstances, Taylor said he had children to support,
but he did not have cash, a home, a car, or any bank accounts.
Citing our decision in Holt, the panel questioned whether it could
give much, if any, weight to these answers, suggesting that a de-
fendant's unsworn "testimony" at a sentencing hearing is not "real
evidence" but merely an affirmative response to the court's ques-
tioning. Taylor, 2021 WL 3823437, at *3 (citing Holt, 305 Kan.
at 844). Sworn testimony may certainly be more credible than un-
sworn responses. But Holt does not preclude a court from consid-
ering—and even relying on—the responses it has elicited from the
parties at sentencing. Here, the district court properly relied on
Taylor's responses regarding his poverty status to find that Taylor
had minor children he was financially responsible for and that he
lacked substantial assets. In turn, the district court relied on these
findings to conclude that restitution should be repaid in specified
installments, rather than ordering the entire amount due immedi-
ately, as the statutory scheme contemplates in most instances.
Aside from his responses to the district court's questions, Tay-
lor presented no evidence about his ability to make those monthly
restitution payments. He did not introduce evidence about the like-
lihood of securing employment while incarcerated, the daily
wages he might expect from such employment, or other expenses
he expected to incur while incarcerated. Fortunately for defend-
ants, they need not possess clairvoyance or rely on any other sixth
370 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
sense to obtain such information, as the dissent suggests. Much of
it is readily available in the Internal Management Policies and Pro-
cedures of the Kansas Department of Corrections, which the De-
partment is required to publish under K.A.R. 123-2-110 and is
readily available on its website. While the parties agree that Tay-
lor lacked the assets to pay restitution in full at the time of sen-
tencing, he simply failed to put on any evidence showing he would
be unable to make the $15 monthly payments while incarcerated.
See Shank, 304 Kan. at 96 (defendant failed to meet burden to
show unworkability by failing to present evidence of his inability
to pay restitution at the time it would be due); Alcala, 301 Kan. at
840 (same). In short, Taylor's responses alone would not compel
a reasonable jurist to conclude that the $15 monthly payment plan
was unworkable.
Taylor has the burden to show the plan is unworkable—nei-
ther the State nor the court must show that the plan is workable.
As a result, we agree with the panel: "With the dearth of evidence
presented here, we hold that Taylor has not met his burden to show
that the restitution plan is unworkable." Taylor, 2021 WL
3823437, at *3.
Affirmed.
* * *
STANDRIDGE, J., dissenting: I agree with the majority on the
applicable law but disagree with the majority's application of the
law to the specific facts presented in this case. Based on the facts
presented, no reasonable person would agree that requiring Taylor
to pay $15 per month while serving his prison sentence is a work-
able restitution plan. As such, the district court abused its discre-
tion. For this reason, I respectfully dissent.
As set forth by the majority, once a district court determines a
restitution amount, the amount is due immediately unless:
"(A) The court orders that the defendant be given a specified time to pay or be
allowed to pay in specified installments; or
"(B) the court finds compelling circumstances that would render restitution un-
workable, either in whole or in part." K.S.A. 2022 Supp. 21-6604(b)(1).
VOL. 317 SUPREME COURT OF KANSAS 371
State v. Taylor
The defendant bears the burden to show compelling circum-
stances that repaying restitution—either generally or in the
method proposed by the State or the court—would not work. An
appellate court reviews a district court's decision on the unworka-
bility of a restitution plan for an abuse of discretion. A district
court abuses its discretion when its decision is based on an error
of fact or law or when no reasonable person would agree with its
decision. State v. Meeks, 307 Kan. 813, 816, 415 P.3d 400 (2018).
At sentencing, the district court ordered Taylor to pay
$1,954.36 in restitution beginning in July 2020, the month imme-
diately following sentencing, at the rate of $15 per month. Taylor
did not challenge the restitution amount but opposed the manner
in which he was ordered to pay it—specifically, the requirement
that he pay $15 per month while incarcerated during his 100-
month prison sentence. Taylor advised the court at the sentencing
hearing that he had no cash, no bank account, no car, no home,
and some child-support obligations. When asked by the court for
recommendations on a restitution payment plan, defense counsel
reiterated Taylor had no money and no ability to get a job and earn
money until released from prison and therefore the restitution plan
would be "totally unworkable at this point."
In response, the State disagreed with Taylor's claim of un-
workability:
"I don't think it's totally unworkable. I think if I did my math correctly, if he
were to pay $19.54 every month for the next 100 months that he's in prison, it
would be paid off by the time he's out [of] prison. I don't know if that's feasible
or doable, but at least it would basically be 20 bucks a month for the . . . hundred
months that he's going to be in custody." (Emphasis added.)
Asked if she wanted to add any additional information for
consideration by the court, defense counsel declined, likely be-
cause (1) the State's proposed payment plan focused on a mathe-
matical formula to calculate monthly payments based on the total
restitution amount due and the number of months Taylor would be
in custody and (2) the State acknowledged its uncertainty about
whether the proposed payment plan was "feasible or doable" given
Taylor's circumstances.
Despite concerns from both parties about feasibility and un-
workability of the payment plan in terms of Taylor's present and
372 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
future ability to make monthly payments toward restitution while
incarcerated, the court adopted a modified version of the State's
mathematical formula based on the total restitution owed and the
length of Taylor's sentence: "Based upon the length of incarcera-
tion, the Court's going to order restitution to be payable in the
amount of $15 per month beginning in July of 2020." The court
then noted that if "the Court needs to readdress [the restitution
payment plan] in the future, [defense counsel] can always bring it
to the court's attention."
Taylor moved to amend the restitution payment plan the next
day. In his motion, he asked the court to enter an amended order
deferring commencement of monthly restitution payments until
his release from prison. In support, Taylor reiterated he had no
cash, no bank account, no car, no home, and "no conceivable way
[to] make this plan workable."
The State opposed Taylor's motion to amend. Relevant here,
it argued Taylor failed to show the current restitution plan was
unworkable "because he can earn an income in prison and friends
or family can put money on his books that can be applied toward
the restitution order." (Emphasis added.) The record contains no
evidence to support the State's argument.
But the district court was persuaded by the State's response
and denied Taylor's motion. In its order, the court began by ac-
knowledging Taylor's pretrial jail confinement and current indi-
gency (no income or assets) presented compelling circumstances
to establish the unworkability of an order requiring him to pay
restitution, in full, immediately. Notwithstanding these compel-
ling circumstances, the court concluded Taylor failed to show he
would be unable to make monthly $15 restitution payments for
100 months while serving his prison sentence. Specifically, the
court held Taylor failed to affirmatively prove he "would not be
able to make limited income while incarcerated and apply that to-
wards the court ordered $15.00 monthly payments."
Taylor appealed and a panel of the Court of Appeals affirmed.
Today, a majority of the court affirms the panel and the district
court. Preliminarily, the majority implicitly agrees with the district
court that Taylor's pretrial jail confinement and indigency at the
VOL. 317 SUPREME COURT OF KANSAS 373
State v. Taylor
time of sentencing presented compelling circumstances to estab-
lish the unworkability of an order requiring him to pay restitution,
in full, immediately. Although compelling at the time of sentenc-
ing, the majority nevertheless concludes these circumstances are
not compelling to establish the unworkability of an order requiring
restitution payments of $15 per month, effective immediately after
sentencing. In support of its conclusion, the majority cites Taylor's
failure to "introduce evidence about the likelihood of securing em-
ployment while incarcerated, the daily wages he might expect
from such employment, or other expenses he expected to incur
while incarcerated." Slip op. at 8. In the absence of this evidence,
the majority holds the district court did not abuse its discretion by
ordering the $15 monthly restitution payments because no reason-
able judge would find confinement and indigency at the time of
sentencing compelling enough to establish the unworkability of
monthly restitution payments that come due in the month immedi-
ately after sentencing.
I disagree with the majority and would find the district court
abused its discretion in ordering Taylor to pay $15 per month
while incarcerated in prison because no reasonable judge would
agree this restitution payment plan is workable.
The defendant bears the burden to show "compelling circum-
stances that would render restitution unworkable, either in whole
or in part." K.S.A. 2022 Supp. 21-6604(b)(1)(B). The statute does
not define "unworkable." Given this lack of definition, this court
has held that the Legislature did not intend a rigid or unyielding
definition and that unworkability should be evaluated on a case-
by-case basis. Meeks, 307 Kan. at 819-20. But when a statute does
not define a term, we also have held the court must attempt to de-
termine legislative intent by giving common words their ordinary
meanings. Dictionary definitions are good sources to determine
the ordinary meaning of common words. Midwest Crane & Rig-
ging, LLC v. Kansas Corp. Comm'n, 306 Kan. 845, 851, 397 P.3d
1205 (2017).
Black's Law Dictionary does not define "unworkable" but
does have a definition for "workable": "adj. (1865) (Of a plan, sys-
tem, strategy, etc.) practical and effective; feasible." Black's Law
374 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
Dictionary 1924 (11th ed. 2019). In turn, practical and effective
also are defined:
"practical adj. (15c) 1. Real as opposed to theoretical; of, relating to, or in-
volving real situations and events rather than ideas, emotions, or idealized situa-
tions <for practical purposes>. 2. Likely to succeed or be effective <a practical
alternative>. 3. Useful or suitable for a particular purpose or situation <a well-
drafted indemnity clause may be the most practical solution>. 4. (Of a person)
good at dealing with problems and making decisions based on what is possible
and will actually work <she tried to be practical and figure out a solution>."
Black's Law Dictionary 1418 (11th ed. 2019).
"effective adj. (14c) 1. (Of a statute, order, contract, etc.) in operation at a
given time <effective June 1>. • A statute, order, or contract is often said to be
effective beginning (and perhaps ending) at a designated time. 2. Performing
within the range of normal and expected standards <effective counsel>. 3. Pro-
ductive; achieving a result <effective cause>." Black's Law Dictionary 651 (11th
ed. 2019).
Given the definition encompasses feasibility and the State's
acknowledgment at sentencing that it was uncertain about whether
the proposed payment plan was "feasible or doable" given Taylor's
circumstances, it appears Taylor—at the very least—may have
persuaded the State that the plan was unworkable. Consistent with
the dictionary definition above, it bears repeating that the parties,
the district court, the Court of Appeals panel, and the majority all
implicitly find Taylor's pretrial jail confinement and indigency at
the time of sentencing presented compelling circumstances to es-
tablish the unworkability of a plan to pay restitution, in full, im-
mediately. And not surprisingly, the district court declined to
make the first monthly restitution payment due on the day of sen-
tencing, presumably because such a payment would have been un-
workable given Taylor was in custody, had no cash, no bank ac-
count, no car, no home, and some responsibility for child support.
Yet the court went on to find workable a restitution payment plan
of $15 per month, effective the month immediately after sentenc-
ing, which was just three weeks later. According to the district
court, the sole reason for finding the future restitution payment
plan workable is based on Taylor's failure to show he would not
be able to make limited income while incarcerated.
Short of presenting the testimony of a psychic with the ability
to divine the likelihood of Taylor securing employment while in-
VOL. 317 SUPREME COURT OF KANSAS 375
State v. Taylor
carcerated, the daily wages he might expect from such employ-
ment, and expenses Taylor would incur while incarcerated, I can-
not imagine what evidence the majority expected Taylor to pre-
sent. Moreover, Taylor's ability to obtain employment and the
amount of any earnings are both circumstances beyond Taylor's
control. Taylor cannot control which prison he is assigned to serve
his sentence. Taylor cannot control whether he will obtain em-
ployment at the prison to which he is assigned. Even if he does
obtain employment, Taylor does not control how many hours he
will work or the wages he will receive.
In the absence of a supernatural intervention, it appears the
majority might have found persuasive a submission by Taylor pre-
senting statistical information from the Kansas Department of
Corrections (KDOC) regarding the likelihood that a prisoner will
obtain employment while incarcerated, the average monthly wage
the prisoner might be expected to earn if employed, and the aver-
age monthly expense incurred by a prisoner to maintain hygiene
and other necessities. But putting the burden on Taylor to present
such information is unrealistic and impractical given that the
KDOC likely gathers and retains this statistical information inter-
nally, if it does so at all.
Even if he could use his criminal case to subpoena the infor-
mation, the statistics are averages and have minimal value in de-
ciding unworkability because they do not consider Taylor's indi-
vidual and unique circumstances, which contravenes our directive
that "unworkability should be evaluated on a case-by-case basis."
Meeks, 307 Kan. at 820.
"District courts should use this flexible guideline to evaluate each defendant's
unique circumstances before deciding whether the defendant has shown a plan
would be unworkable. Some of the factors relevant to the court's inquiry will be
the defendant's income, present and future earning capacity, living expenses,
debts and financial obligations, and dependents. In some circumstances, the
amount of time it will take a defendant to pay off a restitution order will also be
relevant, especially if the defendant is subject to probation until the restitution is
paid in full. In all circumstances, the district court should keep in mind the ulti-
mate goals of restitution: compensation to the victim and deterrence and rehabil-
itation of the guilty." Meeks, 307 Kan. at 820.
Applying this flexible guideline for unworkability to Taylor's
individual and unique circumstances yields the following results:
376 SUPREME COURT OF KANSAS VOL. 317
State v. Taylor
Income
Taylor has no income.
Present and future earning capacity
Taylor currently is in custody and unemployed and has no way
to establish his future earning capacity during the 100 months he
will spend in prison.
Living expenses
Taylor has no way to establish his future living expenses while
confined in prison.
Debts and financial obligations
Taylor has some financial responsibility for child support.
Dependents
Taylor has dependent children.
Amount of time to pay off restitution order
The State and the district court focused exclusively on this
factor in fashioning a restitution payment plan that could be paid
off at the time Taylor is released from prison by using a mathe-
matical formula to calculate monthly payments based on the total
restitution amount due and the number of months in custody.
Purposes of restitution; victim compensation and offender deter-
rence and rehabilitation
Imposing an unachievable monthly restitution payment plan
does not align with the purpose of restitution because its effect is
offender punishment instead of deterrence and rehabilitation.
Conversely, deferring the monthly restitution payments until Tay-
lor has the ability to earn money upon release from prison balances
the competing interests of payment to the victim and offender de-
terrence and rehabilitation without punishment.
In sum, the majority agrees Taylor presented compelling cir-
cumstances (no assets and no job) to find unworkable a plan for
whole or partial restitution payments at the time of sentencing.
VOL. 317 SUPREME COURT OF KANSAS 377
State v. Taylor
Although Taylor had no way to predict, speculate, or control
whether his financial situation would change in the next three
weeks or the next 100 months, the majority placed an impossible
burden on Taylor to show he would not be able to earn income as
soon as he was placed in prison. Based on the facts presented
showing indigency, lack of assets, and lack of employment, no
reasonable judge would find workable the restitution plan requir-
ing Taylor to pay $15 per month, beginning 3 weeks after sentenc-
ing and continuing for the next 100 months. Accordingly, I would
find the district court abused its discretion and remand the matter
for the district court to enter a workable order of restitution.
ROSEN and WILSON, JJ., join the foregoing dissenting opin-
ion.
378 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
No. 125,968
In the Matter of CHRISTOPHER C. BARNDS, Respondent.
(530 P.3d 711)
ORIGINAL PROCEEDING IN DISCIPLINE
ATTORNEY AND CLIENT—Disciplinary Proceeding—Three-month Suspen-
sion, Stayed Pending Successful Completion of Two-year Period of Proba-
tion.
Original proceeding in discipline. Opinion filed June 16, 2023. Three-
month suspension, stayed pending successful completion of two-year period of
probation.
Matthew J. Vogelsberg, Chief Deputy Disciplinary Administrator, argued
the cause and was on the formal complaint for the petitioner.
Christopher C. Barnds, respondent, argued the cause pro se.
PER CURIAM: This is an original proceeding in discipline
filed by the Office of the Disciplinary Administrator against the
respondent Christopher C. Barnds, of Overland Park, an attorney
admitted to practice law in Kansas in September 2012.
On August 25, 2022, the Disciplinary Administrator's office
filed a formal complaint against the respondent alleging violations
of the Kansas Rules of Professional Conduct (KRPC). The re-
spondent filed an answer to the formal complaint on September
15, 2022. A panel of the Kansas Board for Discipline of Attorneys
held a hearing on December 1, 2022. The respondent appeared
with counsel, Diane L. Bellquist.
At the end of the hearing, the panel determined that the re-
spondent violated KRPC 3.4(c) (2023 Kan. S. Ct. R. 394) (know-
ingly disobey an obligation under the rules of a tribunal except for
an open refusal based on an assertion that no valid obligation ex-
ists), KRPC 4.4(a) (2023 Kan. S. Ct. R. 405) (shall not use means
that have no substantial purpose other than to embarrass, delay, or
burden a third person), KRPC 8.4(a) (2023 Kan. S. Ct. R. 433) (to
violate the rules or knowingly assist another to do so), KRPC
8.4(d) (engage in conduct that is prejudicial to the administration
of justice), and KRPC 8.4(g) (engage in any other conduct that
adversely reflects on the lawyer's fitness to practice law). The
VOL. 317 SUPREME COURT OF KANSAS 379
In re Barnds
panel set forth its findings of fact and conclusions of law, along
with its recommendation on disposition, in a final hearing report,
the relevant portions of which are set forth below. The respondent
initially filed exceptions to the hearing panel's report but later
withdrew them.
"Findings of Fact
. . . .
"Count 1-DA13,349
"9. In March 2017, respondent entered his appearance on behalf of [R.R.]
in a post-divorce, child-custody dispute in Johnson County District Court Case
No. 2015-CV-724.
"10. Around the time respondent entered his appearance, [R.R.]'s ex-wife,
[M.], had filed an emergency motion to suspend [R.R.]'s parenting time of the
former couple's two minor children. [M.] was also seeking the court's permission
to relocate with the children to the state of Washington.
"11. On April 3, 2017, the presiding judge, Hon. Christina Dunn Gyllen-
borg, appointed attorney Tobi Bitner to serve as the Guardian ad Litem (GAL)
to represent the bests interests of the children pursuant to K.S.A. Supreme Court
Rule 110A (2022 Kan. S. Ct. R. at 193).
"12. Rule 110A(c)(1) states in pertinent part:
'Conducting an Independent Investigation. A guardian ad litem must con-
duct an independent investigation and review all relevant documents and records,
including those of social service agencies, police, courts, physicians, mental
health practitioners, and schools. Interviews—either in person or by telephone—
of the child, parents, social workers, relatives, school personnel, court-appointed
special advocates (CASAs), caregivers, and others having knowledge of the facts
are recommended. Continuing investigation and ongoing contact with the child
are mandatory.'
"13. In April 2017, [R.R.] was the defendant in a pending criminal case.
That same month, both [R.R.] and respondent sent emails to Bitner, indicating
that she could communicate directly with [R.R.]'s criminal defense attorney,
Trey Pettlon, about the pending criminal case.
"14. In December 2017, there was a change in the individual appointed by
the court to monitor [R.R.]'s parenting time. On December 14, 2017, respondent
sent Bitner an email regarding the changes in the monitor and manner in which
supervised exchanges were taking place. In his email, respondent wrote:
'I very honestly feel like these changes are retaliatory against my client and
I for having a legitimate difference in opinion as to what was ordered last week.
380 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
If you want to dislike me, or punish me in some way, that's fine. I sadly under-
stand how personal feelings can play a role in these cases, and I can accept that
and work with that. But I do not think it's fair (among a lot of other concerns)
that my client gets punished because his attorney is telling him he understood the
court's orders to be something different then what the GAL thought.'
"15. On December 18, respondent sent a follow-up email to his December
14 email to Bitner. In the email, respondent wrote:
'I am not showing any response to my email below. I would like to arrange a time
to talk to you. This can occur over the phone or in person, although my availa-
bility for the latter will be more limited. I am also hoping you have seen the
recent ROA notes that were recently uploaded. As one of the issue [sic] I want
to discuss is how we plan to make up some of the time dad lost this past week.'
"16. That same day, Bitner responded by email, stating:
'In the past few weeks, you have sent an onslaught of emails stating you con-
tinue to be confused over the Court's orders, implying I am not only that I am
[sic] impartial, but that I have some sort of a personal vendetta against you,
and making false statements about me to the professionals involved in this
case.
You emailed me on Friday, 12/8/17, and requested a time to meet with me in my
office. I replied the same day with my availability (choosing from the times you
suggested) and held that time open on my calendar for Monday, 12/11/17. You
didn't reply and never showed up. I emailed a follow up the same day and you
replied, telling me you would get back to me with additional times to speak. You
never replied again. Then, you sent the email on this email chain, alleging my
impartiality again, on 12/14/17.
'Now, you email me and request I set aside more time to talk.
'Given all of your allegations, your continued misunderstandings about orders,
and the fact you've misrepresented my statements to professionals in this case, I
believe the only communication we need to have at this juncture should be in
written form or on the record.'
"17. On December 20, 2017, Bitner filed a Motion for an Emergency Hear-
ing to Modify the Temporary Parenting Plan, alleging that [R.R.] was refusing
to comply with the parameters set forth by the parenting time supervisor and her
to assure all parties were following the court's temporary orders. Accordingly,
Bitner moved the court to find that it was in the best interest of the minor children
for [R.R.] to have supervised parenting time through the Layne Project until fur-
ther order of the court.
"18. At 2:04 p.m. on December 20, Bitner sent an email to counsel for the parties
with the subject line: 'Reed 15CV0724—EMERGENCY Motion Attached—request
for hearing.' Attached to the email was a copy of Bitner's emergency motion.
VOL. 317 SUPREME COURT OF KANSAS 381
In re Barnds
"19. At 2:16 p.m., respondent sent an email to Bitner with the subject line:
'REED: Sincere Ethical Concerns.' In the email, respondent wrote:
'As you have requested we only communicate via email, and have stated you do not
wish to talk to me over the phone or in person, I have no other option but to communicate
this message via email.
'I have concerns you have violated your ethical obligations in this case as a GAL. Spe-
cifically, I have been advised you have spoken to other third-parties about this case with-
out having any formal or legal release to do so. Among those who have been reported
you talked to, is attorney Trey Pettlon. Can you please immediately forward [to] me the
release that has been executed authorizing you to speak with Mr. Pettlon, or any release
for that matter that you presently have from my client authorizing you to speak with any
third-party.'
"20. At 2:31 p.m., Bitner replied to respondent's 'Ethical Concerns' email and car-
bon copied attorney Pettlon on the email. In the reply email, Bitner stated:
'I can assure you that I have upheld my ethical obligations, pursuant to the Court's Orders
and Rule 110A. It is also my understanding that Mr. Pettlon can make any disclosures
necessary, in his client's best interest, he believes are appropriate. However, I will let
Mr. Pettlon speak for himself.'
"21. Respondent replied at 2:36 p.m., stating: 'Are you indicating you do not be-
lieve you needed a release to speak directly with my client's criminal attorney?'
"22. At 3:03 p.m., respondent replied to Bitner's emergency motion email, stating:
'Didn't want to mention anything about the kids commenting on being exposed to
Grandparents over the last 24 hrs? I think we both see where this is going. I will be filing
a Motion to have you removed, as I think you are incapable of providing objective and
impartial representation for the children. You have taken a personal issue with me, and
apparently with my client, and let it turn into something much greater. That is not o.k.'
"23. At 3:22 p.m., Bitner responded to respondent's email regarding a release to
speak to Pettlon. Bitner stated:
'I am not sure what you seek to gain from continuing to ask me the same question. Not
only is your allegation out of bounds, but it is completely unfounded. [R.R.] requested I
communicate with Mr. Pettlon and, as counsel for [R.R.], you are aware of this and have
even participated in email exchanges with Mr. Pettlon and myself.'
"24. At 3:28 p.m., Bitner responded to respondent's emergency motion email, tell-
ing respondent that he was free to file whatever motion he felt was appropriate and ben-
eficial to his client.
"25. At 5:10 p.m., respondent replied to Bitner's email regarding speaking to Pet-
tlon, stating:
'I understand your position. Should I feel the need to further discuss this issue, I will
reach out. I am going to try and step away from our email communications until after
382 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
the Christmas holiday, as I think we would both agree they are no longer helping to
resolve anything, and only deteriorating the situation further. With time being arranged
through Sunday, I also do not see a need to contact until after the holiday.
'Hope you have a merry Christmas.'
"26. On February 6, 2018, respondent, on behalf of [R.R.], filed a motion
entitled, 'Time Sensitive Motion to Immediately Remove Current Guardian Ad
Litem and Appoint Case Manager or New Guardian Ad Litem.' In the motion,
respondent alleged that Bitner needed to be immediately removed as the GAL
because of a 'fundamental conflict between Ms. Bitner's duties and responsibili-
ties to the minor children and the court in this matter, and Ms. Bitner's actions in
this case over recent months.'
"27. In the motion, respondent alleged that Bitner had (1) made a social
media post mocking respondent; (2) demonstrated prejudice towards [R.R.]; (3)
called [R.R.] an 'idiot' during Judge Assisted Mediation; (4) intentionally failed
to vet the possibility of the children's paternal grandfather serving as a parenting
time monitor; (5) intentionally failed to investigate allegations of child alienation
by [M.]; (6) attempted to force the new parenting time monitor's services upon
[R.R.] sooner than what the court had ordered; (7) seeking to limit [R.R.]'s par-
enting time out of bias, vindictiveness, and prejudice; (8) issuing a unilateral 'or-
der' to stop [R.R.]'s parenting time; (9) reporting to professionals (but not the
court) that she believed [M.] raised allegations of abuse against [R.R.] to assist
her in her quest to relocate herself and the children to Washington; and (10) re-
porting to the court that 'every professional' [R.R.] encountered regarding the
custody case had problems with him.
"28. Both Bitner and [M.]'s counsel filed responses, denying the allega-
tions.
"29. On February 28, 2018, Judge Gyllenborg conducted a hearing on re-
spondent's motion. From the bench, Judge Gyllenborg denied the motion and
directed respondent to prepare a proposed journal entry pursuant to Rule 170
(2022 Kan. S. Ct. R. at 236).
"30. In March of 2018, Judge Gyllenborg recused herself and Judge Robert
Wonnell was assigned to preside over the case.
"31. Because Bitner and [M.]'s counsel objected to the proposed journal en-
try that respondent prepared, respondent submitted the proposed journal entry
and accompanying objections to the district court to settle the journal entry pur-
suant to Rule 170(d)(3).
"32. Prior to the district court settling the journal entry, respondent sent an
email to Bitner on April 6, 2018, advising her that if she did not voluntarily with-
draw as GAL from the case,
'I fully intend on filing a Motion for Reconsideration before Judge Wonnell as
soon as the JE from our Feb. 28th hearing is actually entered. As you likely know,
VOL. 317 SUPREME COURT OF KANSAS 383
In re Barnds
I cannot file that motion until the judge signed JE is actually on file. Which is
the only reason such a Motion has not been filked [sic] yet. From the date the JE
is formally entered, I have 28 days to file my Motion. A Motion I again fully
intend to file if you do not wish to recuse yourself in line with Father's statutory
rights. At which point I also intend to have Judge Wonnell fully review each and
every allegation I levied against you. As the bias, prejudice, and favoritism in
this case has gotten beyond control—and at this point it is becoming severely
detrimental to the emotional and psychological well being of two very young
children.'
"33. On June 12, 2018, Judge Gyllenborg issued a journal entry regarding
the orders she made at the February 28, 2018 hearing, which included denying
[R.R.]'s Motion to Remove Bitner as the GAL. In denying this motion, the court
found that
'GAL Bitner has put in countless hours, that she has previously made recommen-
dations to the Court that have been at times beneficial to Father, and at times
beneficial to Mother. GAL Bitner has not presented to this Court as being preju-
diced to either party, and she has not displayed animosity toward Father. GAL
Bitner previously recommended an expansion of Father's time with the minor
children despite objection by Mother. The Court followed that GAL recommen-
dation. The Court additionally finds that GAL Bitner is still committed to work
diligently to seek a good relationship by working with both the children and the
parents. GAL Bitner's investigation is ongoing. The Court is not surprised by the
ongoing disputed issues between the parties. The Court is amazed by the time
GAL Bitner has put into the case, despite respondent being behind on his pay-
ment of GAL fees.'
"34. Notably, the court ordered 'in the event a party intends to file a pleading
that contains information regarding attorney misconduct, such pleading shall first
be emailed to opposing counsel and a copy emailed to the Court for a threshold
determination of whether the pleading will be allowed to be filed, and whether
such pleading shall be filed under seal.'
"35. Finally, the court granted [M.]'s request for an award of attorney fees
against Father for 2.75 hours of attorney time required to respond to the Motion
to Remove Guardian ad Litem.
"36. On July 10, 2018, respondent, on [R.R.]'s behalf, filed a Motion for
New Trial or in the Alternative, to Alter or Amend pursuant to K.S.A. 60-259
and Motion for Appointment of Case Manager. In the motion, respondent argued
that the court's June 12 journal entry amounted to an 'erroneous ruling' and was
'contrary to the evidence that was available to be presented at a hearing on the
motion' and 'additional evidence that has came to light since.'
"37. In addition to some of the previous allegations respondent raised in his
February 6, 2018, motion, respondent claimed in the current motion that Bitner
had failed to respond to several emails he had sent to her on March 20, 22, 28,
384 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
and April 23, 2018, asking Bitner to articulate the safety concerns she had re-
garding father having parenting time with the children. Respondent stated that
'[d]espite email, after email, after email being sent requesting this information,
the GAL never responded to a single email. And still has not responded to any
such emails to this date. These emails can be submitted to this Court as record
evidence at a hearing on this Motion.' (Emphasis added.) Respondent claimed
that Bitner's alleged failure to respond to these emails 'was yet another example'
of her 'extreme bias and prejudice' in this matter, which respondent claimed was
the result of [R.R.] failing to timely submit payments to Bitner for her GAL ser-
vices, compared to [M.], who timely paid Bitner.
"38. Subsequently, Bitner and [M.]'s counsel filed responses to respondent's
motion, both noting that respondent had failed to comply with the district court's
June 12, 2018, journal entry, requiring any party that intends to file a pleading
containing information regarding alleged attorney misconduct to first email the
pleading to opposing counsel and the court 'for a threshold determination of
whether the pleading will be allowed to be filed, and whether such pleading shall
be filed under seal.' Bitner again denied the allegations contained in respondent's
motion. Regarding the allegation that she failed to respond to the emails men-
tioned above, Bitner stated: 'The GAL vehemently denies the allegations in this
subparagraph and asserts she diligently responds to the parties in this case, de-
spite [R.R.]'s continuing failure to comply with the Orders of this Court and remit
payment to the GAL.'
"39. On September 6, 2018, the district court conducted a hearing and ulti-
mately denied the motion for new trial.
"40. On December 17-18, 2018, the district court conducted a hearing on
[M.]'s motions for sole legal custody of the children and to relocate them to
Washington and [R.R.]'s motion to modify the parenting plan. Subsequently, the
court issued a journal entry denying the motion to relocate the children and grant-
ing in part and denying in part the remaining motions.
"41. On February 7, 2019, attorney Catherine Zigtema entered her appear-
ance on behalf of Bitner and filed a motion seeking judicial review of a proposed
Motion for Sanctions and Attorney's Fees pursuant to the district court's June 12,
2018, journal entry. The motion asked the court to provide direction on whether
the proposed motion should be publicly filed or filed under seal. Copies of the
proposed Motion for Sanctions and Attorney's Fees were emailed to the court
and counsel for the parties.
"42. After receiving approval, Bitner publicly filed her Motion for Sanc-
tions and Attorney's Fees on February 14, 2019. Within the motion, Bitner asked
that [R.R.] and respondent be sanctioned for (1) repeated violations of court or-
ders and directives in this matter; (2) repeated use of improper litigation tactics
alleging unfounded ethics violations; (3) repeated use of other cumbersome, ex-
cessive, and improper litigation tactics; (4) and repeated failure to conduct liti-
gation in a civil and appropriate manner consistent with the pillars of profession-
alism.
VOL. 317 SUPREME COURT OF KANSAS 385
In re Barnds
"43. Bitner pointed out that respondent violated the court's June 12, 2018,
journal entry by publicly filing his July 10, 2018 motion for a new trial (alleging
that Bitner had engaged in attorney misconduct) without first submitting it to the
court for review to determine whether the motion should be publicly filed or filed
under seal.
"44. In addition to respondent's allegations against Bitner in publicly filed
motions, Bitner also noted that respondent had alleged in emails and phone calls
to her that she had engaged in unethical conduct. Bitner stated that respondent's
allegations 'appear to be an attempt to coerce the Guardian Ad Litem to take a
particular action or make a particular recommendation favorable to his client' and
noted the December 20, 2017, email she had received from respondent, claiming
that she had improperly communicated with third parties regarding [R.R.], in-
cluding [R.R.]'s criminal defense attorney.
"45. Finally, Bitner argued that respondent's conduct towards her was sub-
stantially similar to his conduct in a Wyandotte County domestic case where re-
spondent had also filed a motion to remove and replace the GAL. Bitner argued
that the GAL in that case filed a response to the motion by filing an affidavit with
the court, which documented her efforts in the case and described a phone call
she had with respondent where respondent accused her of ethical violations. No-
tably, the GAL stated she believed respondent engaged in the conduct to improp-
erly influence her decisions.
"46. The district court conducted an evidentiary hearing on the motion on
March 29, 2019.
"47. On July 18, 2019, the district court issued its journal entry regarding
the March 29, 2019, hearing. The district court found that respondent had vio-
lated the court's previous June 12, 2018, journal entry by filing his July 11, 2018,
motion for new trial without first seeking judicial review of whether the motion
should be filed publicly or under seal. The court noted that respondent's motion
'contained allegations of misconduct by the GAL and its filing, without court
permission, was in direct violation of the current, standing applicable order. The
fact that the judge ruling on the matter had changed did not negate the prior
Judge's order. The filing of this motion in direct violation of the court's directive
is sanctionable conduct.'
"48. As a sanction, the court ordered respondent to personally pay $250 to
Bitner and $250 to [M.]'s counsel.
"49. The court also found troubling the email respondent sent to Bitner on
December 20, 2017, stating that he had 'concerns' Bitner had violated her ethical
obligations as GAL in the case, accusing her of speaking to 'third-parties about
this case without having any formal or legal release to do so,' and asking her to
forward the executed release that authorized her to speak with third parties. The
court stated:
386 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
'If [Respondent] had knowledge of any action, inaction, or conduct which in his
opinion constituted misconduct of the GAL, he had an obligation to inform the
appropriate professional authority. See Rule 226, Kan. R. Prof. Conduct 8.3. Sec-
ond, he is alleging that the GAL engaged in improper communications without a
release and demanded to see her authority. Again, this request does not serve a
legitimate purpose as the original order appointing the GAL clearly states that
the GAL has the court-ordered authorization to review the records of and/or in-
terview any agency, school, school district, organization, person or office, in-
cluding the Clerk of the Court, any police department or law enforcement
agency, any pediatrician, psychologist, psychiatrist, hospital, mental health treat-
ment facility, medical provider, social worker, welfare agency, doctor, nurse,
teacher, school official, staff, etc. In the email, [Respondent] states that he has
'been advised' (although he does not say by whom) that GAL has spoken to third-
parties without a release to do so. This is simply false. Third, [Respondent] im-
plies that it was improper for the GAL to have spoken with [R.R.]'s other attor-
ney. [R.R.]'s other attorney would have the responsibility to decide what matters
could be discussed with the GAL. Additionally, [Respondent] himself emailed
the GAL and specifically stated that the emails had a "clear release" and [R.R.]
could save some money if the GAL would email [R.R.] directly and not have
[Respondent] relay information.'
"50. Accordingly, the court concluded that the email 'served no legitimate
purpose' and that its timing (sent 12 minutes after the GAL notified respondent
that she would be filing an emergency motion) left the court 'with no other con-
clusion [but] that the email from [Respondent] was meant to harass or intimidate
the GAL and that [Respondent] acted in bad faith in sending the email.'
"51. The district court also took issue with the allegation respondent made
in his July 10, 2018, Motion for New Trial, claiming that Bitner had failed to
respond to his emails requesting the safety concerns she had regarding [R.R.]
having parenting time and that she 'still has not responded to any such emails to
this date.' The district court noted that at the March 29, 2019, hearing, [R.R.]
'affirmed [Respondent's] statement that the list of safety concerns was actually
received by [Respondent] in June 2018.' The court also noted that respondent
offered no evidence to support the allegation made in the July 10, 2018, motion
'that the GAL was responding to emails from [M.] because she was paying her
bills and ignoring [R.R.]'s emails because he was late on payments to the GAL.'
"52. The district court took judicial notice of the Wyandotte County child
custody case that Bitner had noted in her motion for sanctions. The court noted
that the pleadings respondent filed in the Wyandotte County case regarding the
GAL were substantially similar to the pleadings he filed in the current case. The
court concluded that in both cases, respondent would accuse the GAL of 'extreme
bias and prejudice' whenever the GAL happened to advocate for a position con-
trary to that of respondent.
"53. In taking judicial notice of the Wyandotte County case, the court stated
that it was 'not taking judicial notice as to whether or not the assertions actually
VOL. 317 SUPREME COURT OF KANSAS 387
In re Barnds
occurred or of the Judge's ultimate ruling, but rather only of the fact that Re-
spondent's counsel filed a pleading making these allegations against another
GAL.'
"54. The court specifically found that respondent acted in bad faith when
he engaged in the conduct noted above. As a result, the district court ordered
respondent to personally pay $2,500 in attorney's fees to Zigtema. This was in
addition to the $500 in attorneys' fees he was ordered to pay Mother's counsel
and Bitner for filing his July 11, 2018, motion without first seeking court ap-
proval.
"55. Subsequently, both Judge Wonnell and Zigtema filed complaints with
the Office of the Disciplinary Administrator (ODA) regarding respondent's con-
duct. The matter was docketed for investigation as DA13,349.
"56. On September 16, 2019, the ODA received respondent's response to
the complaints, contending that he did not engage in any unethical conduct. In
part, he claimed that if he would have received sufficient notice that he needed
to present evidence at the March 29, 2019, hearing of Bitner's extreme prejudice
against [R.R.] due to [R.R.]'s failure to timely pay Bitner's GAL fees, respondent
would have presented such evidence. Furthermore, respondent claimed that the
email he sent to Bitner on December 20, 2018, regarding the ethical concerns he
had with Bitner was not sent in bad faith or in retaliation for Bitner filing her
motion asking for an emergency hearing to modify the temporary parenting plan.
"57. In the underlying custody case, respondent sought to challenge the dis-
trict court's journal entry by filing a motion for new trial or alter or amend the
judgment on August 15, 2019. After that motion was denied on September 11,
2019, respondent filed a notice of appeal on October 8, 2019.
"58. In October 2019, Bitner and Zigtema retained attorney Eric Kraft to
collect the attorneys' fees that Barnds was ordered to pay to them. On October
24, Kraft obtained an order of garnishment for a bank account that respondent
had with Commerce Bank.
"59. Ultimately, respondent did not appeal the district court's journal entry.
Instead, he settled the judgments he owed to Zigtema and Bitner, with satisfac-
tions of judgment being filed on November 12, and December 2, 2019, respec-
tively.
"Count II-DA13,563
"60. Based on an incident that occurred on April 1, 2020, J.S. filed a petition
for protection from abuse (PFA) pursuant to K.S.A. 60-3101 et seq. against M.S.
in Johnson County District Court on April 22, 2020 (Case No. 20-CV-1790).
That same day, temporary orders were issued, which prevented M.S. from con-
tacting J.S.
"61. Prior to J.S. filing the PFA petition, J.S. and M.S. had dated intermit-
tently for approximately 10 years. In May 2019, J.S. was arrested and charged in
388 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
Johnson County District Court with domestic battery (Case No. 19-DV-00640).
M.S. was the alleged victim. In November 2019, the State dismissed the charge
without prejudice.
"62. Shortly after filing the PFA petition, J.S. retained attorney Joseph
Booth to represent her.
"63. M.S. initially retained attorney Suzanne Hale Robinson to represent
him. Robinson entered her appearance in the case on May 7, 2020, but subse-
quently filed a motion to withdraw five days later. On May 19, Robinson was
allowed to withdraw, and respondent formally entered his appearance on behalf
of M.S.
"64. The day before, May 18, respondent and Booth began exchanging
emails regarding the PFA case. Booth informed respondent that M.S. had been
calling J.S. and leaving her several voice messages in violation of the temporary
orders.
"65. That same day, respondent sent a reply email to Booth, thanking him
for the information. [R]espondent also wrote:
'What time are you available tomorrow afternoon? I would like to talk timely, as
[J.S.] has a lot of property and money of [M.S.], and I need to assess if I need to
file separate actions for those issues and the allegations being levied. He is also
noting concerns of tax fraud on [J.S.'s] behalf, due to large sums of monies she
has received in the past.
. . . .
'These parties have a troubled history (see Case No. 19DV00640). I would like
to keep this matter from blowing up if we can.' (Emphases added.)
"66. Subsequently, Booth and respondent arranged to have a phone call on
May 19, 2020.
"67. On May 20, 2020, respondent sent an email to Booth with an attached
'copy of the proposed Settlement and Release that I am working on getting [M.S.]
to sign.' Respondent stated in the email:
'As I noted in my call yesterday, it is my hope we can keep a reasonable lid on
this matter and not have it blow up into further litigation and law suits [sic].
'I believe having the parties' enter into the attached mutual settlement agreement
would be a tremendous first step in that direction.
'I know you have reviewed the 19DV case where my client is the victim and
yours the assailant. There is a lot more to that case than I believe either you or I
have been able to wrap our head around at this point. There was also a prior
incident with [sic] the parties' lived in MO when your client slit the forearm of
my client from nearly elbow to wrist. There are medical records and police re-
ports that would correspond and support.
VOL. 317 SUPREME COURT OF KANSAS 389
In re Barnds
'Unfortunately, I think there is even more to these two parties past than the above.
My client is also starting to produce documentation, which I am working to or-
ganize in a presentable fashion, supporting his claims of monies and property
your client has in essence unlawfully converted to her own. Now, there may [be]
both facts and evidence that your client has to contest those assertions and alle-
gations, but that is precisely the point I am trying to get at. That is, that if we fail
to keep a reasonable lid on this matter early, it is without question going to spill
over into more litigation.
'I am working on a separate letter today (05/20) also, one that I plan to forward
to you by this evening. The letter will address some of the personal property and
money matters.
'All of the above said, in the spirit of candor and professionalism, please know
on the front end that [M.S.] has indicated he will not agree to a no-contest consent
order is [sic] this matter. As that would not only affect his ability in the future to
find housing and employment, but would also, in practice, take away his 2
nd
Amendment Rights. That is not something he can agree to. I believe [J.S.] could
understand why that is the case. In the event a trial will ultimately be necessary,
I will need time to issue business record subpoenas and get in contact with at
least one or two additional witnesses. I also believe will we [sic] need at least a
half-day for the trial. These are all points I intended to relay to the Court at the
Status Hearing on Friday, thus why I wanted to provide you some advance notice
of same in the spirit of openness.' (Emphasis added.)
"68. After not receiving a response, respondent sent Booth a follow-up
email on May 22, 2020. In the email, respondent noted that he was still working
with M.S. 'to get clear on the property and money issues, and am preparing a
corresponding letter to your attention.' Respondent noted that the previous day,
M.S. had told him that he had proof J.S. had written a fraudulent check from
M.S.'s checking account. Respondent said, 'I have of course asked my client to
forward what documentation he has in this regard, so I can forward it on to you.
The check was apparently written somewhat recently based on what was initially
stated to me.' Respondent concluded his email by stating:
'As I noted in my earlier messages, I would very much like to avoid this thing
blowing up like a powder keg. I plan to ask for Pretrial to be set a few weeks out,
to give you and I time to talk, and me time to look at what discovery, if any, I
will truly need if this matter were to have to go to Trial. Just brief heads up there.'
(Emphasis added.)
"69. Booth responded back a few minutes later, stating:
'We are nowhere near an agreement at this time. Send me credible evidence of
issues like the accusation that [J.S.] wrote a check on his account and I will re-
spond.
'Since this action has nothing to do with personal property, it is our intention to
390 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
not engage in discussions over personal property issues until appropriate protec-
tions are in place for [J.S.].'
"70. In May 2020, M.S. was charged with violating the temporary orders
(Johnson County Case No. 20-DV-00678). On May 26, 2020, M.S. was arrested
pursuant to a warrant.
"71. That same day, respondent sent an email to Booth. In the email, re-
spondent wrote:
'[M.S.] has asked about the possibility of a 4-way settlement conference to be
attended by counsel and the parties.
'I know in past emails and during the Status Hearing held last week you have
stated [J.S.] does not wish to discuss any property matters, and only wishes to
focus on the protection claims. Notwithstanding, it was still my sincere hope the
parties might be able to save themselves a lot of expense and time by trying to
timely resolve all matters pending between them, in an amicable setting?
'I would appreciate it if this request could be relayed to [J.S.] as timely as possi-
ble. We could file a short agreed order allowing attendance and communication
at this conference once coordinates [sic] In the alternative, I have relayed to
[M.S.] that should [J.S.] not wish to hold such discussions, the only option will
be to file a corresponding civil action to deal with property and money matters.'
(Emphasis added.)
"72. Booth responded that same day, indicating that he would forward the
request to J.S. Booth also asked respondent to provide information regarding the
property and money M.S. claimed J.S. had wrongly taken.
"73. On June 10, 2020, respondent sent an email to Booth, trying to sched-
ule a phone call sometime in the next two days to discuss with him
'various pending issues between the parties that I would like to at least try and
discuss with you, as I am presently preparing a Petition for Partition as well as
a Complaint for Damages (both civil filings) that will be filled [sic] in Johnson
County by weeks end. Thus, [J.S.] will have to confront these issues one way or
another. As surprised as I was to hear it even today, [M.S.] would still like to
avoid more legal issues popping up for either party.'
"74. Booth responded back that day, stating that he was available for a
phone call that Friday. Booth also claimed that the civil actions respondent men-
tioned were 'not appropriate under the circumstances, as you know, I'm sure, the
district courts handle these matters under the general divorce statutes.'
"75. It appears that Booth and respondent were unable to speak that Friday.
"76. On June 18, 2020, respondent emailed Booth, asking if he was availa-
ble to speak that day or early the next day, prior to a status conference scheduled
in the PFA case. Booth responded that he didn't have time to speak that day but
maybe would have time to speak the next day.
VOL. 317 SUPREME COURT OF KANSAS 391
In re Barnds
"77. That same day, respondent sent a follow-up email to Booth, stating:
'As we are not talking today, and I want to give you a chance to hold aconversa-
tion with your client about a specific topic, I will provide the"short" version here.
'In 2014, [J.S.] assaulted [M.S.] while intoxicated. Specifically, she slashed [M.S.] arm
from elbow to wrist. It resulted in over $250,000.00 in medical work.
'At the time of the incident, your client called [A.K.], a mutual friend of the par-
ties whom both went to high school with, and confessed to the crime. Your client
was the one who actually called 911 because she was no [sic] nervous of what
she had done.
'Police showed up later that night, as did [A.K.]. At the time my client lied to
police and told them it was an "accident." Police wanted to pursue charges, but
[M.S.] refused to change his story due to threats from your client at the time of
making his life difficult.
'My client has been in contact with the Cass County (MO) D.A.'s office, and as
the incident would classify as a Class A felony—due to the extent of damages
and medical bills—they can still pursue the charges. They are ready to do this.
'While not as serious, a similar incident occurred in 2019. It is the DV charge.
My client literally dogged [sic] the subpoena, so they could not pursue charges.
[M.S.] has a call with their office next week to review the file. It would still be
within the 3-yr statute of limitations.
'There is also a serious tax fraud issue. I genuinely did not know before this mat-
ter that the IRS will literally provide financial rewards for those who turn in
someone who has committed tax fraud, assuming charges are later substantiated.
Your client engaged in same with [J.S.R.]. Owner of [J.S.R.] Home Builders. He
provided [J.S.] with well over $100k in money. He also made a fake document
indicating [J.S.] worked for [J.S.R.] Home's and made $6,000.00 a month in-
come. This is how she applied for and was approved for an apartment at Water-
crest at City Center. [J.S.R.] verified [J.S.] had a job, however [J.S.R.] never
issued [J.S.] any paychecks. Rather, [J.S.R.] merely gave her money. The two
were in a "romantic" relationship. Despite [J.S.R.] being married to [N.R.].
'Joe, I am providing the details I am above, and mentioning specific names, so
you can hopefully speak with [J.S.] and let her know that the last thing either of
our clients want to do is go to war with the other.
'There is also the serious conversion issue with the $25k. Authorities in MO have
updated Police Reports recently so as to confirm that it was law enforcement who
specifically directed [M.S.] to take his name off the joint account at the time, as
he had his identity stolen. Again, law enforcement can verify this.
'While somewhat surprising to me, [M.S.] still would like to have all four (4) of
us sit down and work all this out, as opposed to all of us litigating out the matters
over the next 12 months. If it would make you and [J.S.] more comfortable, we
392 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
could even do a Video Conference where my client is with me in my office, and
your [sic] with you.
'As for tomorrow, I plan to tell the Judge we still want to keep the trial date held
as is. That will hopefully allow time for our settlement conference.
'[M.S.] again does not want to see your client or himself get into a bad spot. He
even indicated that if this is about the $25k inheritance from my client's father,
[M.S.] is willing to help [J.S.] some financially if she needs it. All details we
could discuss during the settlement conference.'
"78. Booth responded back by email that same day, June 18, stating:
'First, Do [sic] you have any evidence you are willing to share that would support
these claims? Any at all?
'Second, are you saying that [M.S.] will pursue these various actions and claims
unless [J.S.] does what? Sits down to talk, or are you asking her to drop the pro-
tection from abuse action in exchange.'
"79. Respondent replied:
'I am doubling check [sic] with [M.S.] to determine what he has now, specifi-
cally. I may also need to formally subpoena a police department or two for a full
report, as well as maybe a hospital. I will have more information by tomorrow
morning to share one way or another.
'The request to sit down has not changed. Was always [M.S.'s] desire, and still
is, to have these two parties civilly resolve their issues as opposed to using the
court system. He has known [J.S.] for going on some 25 yrs. as I understand it. I
candidly am still trying to get caught up on that history, and all that has occurred.
All I know right now is that my client believes if the parties' could talk civilly
with one another, with the assistance of counsel in a secure setting, we might be
able to work through a lot of issues.'
"80. On June 19, 2020, respondent, on behalf of M.S., filed a separate action
in Johnson County District Court—Petition for Partition & Complaint for Dam-
ages—Case No. 20-CV-2599. In the petition, M.S. alleged that J.S. had wrong-
fully retained $25,500 of M.S.'s money and had taken various pieces of personal
property from M.S. Subsequently, Booth, on behalf of J.S., filed an answer and
counterclaim.
"81. On July 10, 2020, Booth, on behalf of J.S., filed a Trial Brief and Mo-
tions for Sanctions, seeking sanctions against M.S. because of his multiple vio-
lations of the temporary orders established in the case and sanctions against re-
spondent, based on the emails he sent to Booth (quoted above), suggesting that
M.S. would pursue unrelated civil and criminal actions against J.S. unless she
agreed to settle the pending PFA petition.
"82. On July 23, 2020, respondent filed a response to the motion for sanc-
tions, generally denying that the emails he sent to Booth were inappropriate.
VOL. 317 SUPREME COURT OF KANSAS 393
In re Barnds
"83. A final hearing on the PFA petition was scheduled for July 24, 2020.
At the hearing, M.S. indicated that he would be willing to enter into a final con-
sent order regarding the PFA. The matter was then continued to August 14 for
the parties to present the agreement and for the court to hear arguments regarding
J.S.'s motion for sanctions and attorney fees.
"84. On August 14, 2020, the final consent order was filed in the case. The
order notes that J.S. and M.S. 'have knowingly and voluntarily waived their rights
to a hearing' and that M.S. 'consents to the orders without finding of fact or fault.'
That same day, the court conducted a hearing regarding the motion for sanctions
and took the matter under advisement.
"85. A transcript of the August 14, 2020, hearing could not be produced
because the audio equipment being used to record the hearing was not working.
"86. On August 21, 2020, the district court issued a journal entry denying
the motion for sanctions. The journal entry indicates that the district court denied
the motion for sanctions against M.S. because criminal proceedings were pend-
ing against him for violating the court's temporary orders. Regarding the motion
for sanctions against respondent, the journal entry simply stated that the motion
was denied. The journal entry did not provide the court's reasoning for denying
the motion.
"87. On August 26, 2020, the ODA received Booth's complaint against re-
spondent regarding the emails (noted above) that he sent to Booth.
"88. The matter was docketed for investigation as DA13,563. Respondent
submitted a response to Booth's complaint and cooperated in the subsequent in-
vestigation.
"Count III-DA13,665
"89. In May 2016, [B.S.] filed for divorce from his wife, [T.], in Johnson
County District Court, Case No. 16-CV-2992. Two children had resulted from
the marriage, a 15-year old and an 11-year old.
"90. Eventually, the parties entered into an agreement regarding a parenting
plan and property division. A divorce decree was filed on September 1, 2017.
"91. In March 2018, attorney Kelli Cooper, on behalf of [T.], filed a motion
to modify the parties' parenting plan, alleging that [B.S.] had engaged in physical
and emotional abuse of the ex-couple's children.
"92. In February 2019, while the motion to modify was still pending, re-
spondent entered his appearance on behalf of [B.S.].
"93. Ultimately, a hearing on the motion to modify occurred June 17-19,
2019. Thereafter, on August 1, 2019, the court issued its journal entry, modifying
the parenting plan.
394 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
"94. On October 8, 2020, respondent, on behalf of [B.S.], filed a motion to
modify the parenting plan. That same month, the court ordered the parties to
participate in mediation.
"95. Ultimately, a status conference was scheduled for March 3, 2021.
"96. Prior to the status conference, respondent sent attorney Cooper an
email on February 17, 2021. In the email, respondent noted that there were three
attachments to the email: (1) a letter from respondent to Cooper; (2) a letter from
[B.S.] to Cooper; and (3) a proposed Agreed Journal Entry to resolve [B.S.]'s
pending motion to modify the parenting plan. Regarding the letter from [B.S.] to
Cooper, respondent wrote:
'At the request and insistence of [B.S.], I have also enclosed the latter document
which [B.S.] has prepared himself independently. As a review of the additional PFD
enclosure reflects, the enclosure contains the opinions and contentions of [B.S.] in the
matter.
. . . .
. . . .
'For whatever it may be worth, please know I have spoken with [B.S.] a few times re-
cently as to the advantages of getting this matter resolved without intensive court in-
volvement, or anyone else for that matter. Of course, [B.S.] has his own opinions and
perceptions of the matter. As do you and I. However, I think all could agree an early
global settlement would be the best way to insulate the parties' son from a parenting
conflict, or that which may follow.'
"97. In the attached letter from respondent to Cooper, respondent noted the pro-
posed Agreed Journal Entry and asserted that it represented a reasonable settlement to
the parties' disagreement over child custody. Respondent asked that the agreement be
accepted by February 25, 2021.
"98. Respondent also noted in his letter the letter that [B.S.] provided to him to
forward to Cooper. In a section of his letter titled 'Additional Considerations—Not
"Business as Usual,"' Respondent stated:
'[B.S.] has also asked that I relay another point in close. And that being the efforts he has
made to ensure that if litigation does proceed forward, he does not intend to allow tactics
utilized in the past to be utilized again.
. . . .
. . .
'I could expound on the [sic] all the research [B.S.] had done, or his efforts in getting in
contact with the State AG's office to formalize a lengthy criminal complaint with refer-
ence to his concerns with how the matter was handled previously, and with intent to
dual-copy the relevant BAR agencies, but I am cognizant that you know [B.S.], and that
you can likely appreciate that this is not something he takes lightly.
VOL. 317 SUPREME COURT OF KANSAS 395
In re Barnds
'[B.S.] has prepared his own attachment to this Letter, which he has asked I forward.
The attachment tracks his concerns in more detail. You may review same if you wish,
and will note the time period covered.
'All the above being said, I have advised [B.S.] that often one can attract more bees with
honey. As opposed to something else. And for that reason, I am seeking to extend this
sincere "olive branch" to resolve the matter timely and quickly for all parties and coun-
sel's benefit. If this does not occur timely, however, I am inclined to speculate [B.S.]
may indeed take a different approach to litigation moving forward, and those
whom he may seek to involve starting the morning of Friday the 26
th
if we do not have
an agreement. I would sincerely like to avoid having to even think about what that will
entail. Rather just avoid it.'
"99. In the letter from [B.S.] to Cooper, [B.S.] accused Cooper of committing nu-
merous instances of unethical and criminal misconduct during her representation of [T.]
and, consequently, threatened to file civil and criminal actions as well as file a discipli-
nary complaint against her.
"100. After not receiving a response, respondent sent a follow-up email on Febru-
ary 26, 2021, stating: 'To keep things short, I would sincerely like to get this one settled.
As I fear it will get messy and complicated—not to mention costly for parties—if we
can't stop the train before going off the tracks.'
"101. Cooper replied on March 1, stating that her client would agree to the terms
of the proposed journal entry. But, Cooper asked that they appear for the March 3 status
hearing to put their agreement on the record.
"102. At the March 3 hearing, Cooper expressed objections about respondent's
February 17 email and attachments. Ultimately, the district court did not approve the
proposed journal entry, citing concerns about possible coercion/blackmail arising from
the email and attachments.
"103. The registry of actions for Case No. 16-CV-2992 indicates that no further
action was taken regarding [B.S.]'s October 8, 2020, motion to modify the parenting
plan.
"104. On March 11, 2021, the ODA received a disciplinary complaint from
Cooper, contending that respondent's email and attached letters constituted an improper
threat to her, i.e., that if [T.] did not accept [B.S.]'s proposed settlement agreement, [B.S.]
would pursue civil and criminal actions against her as well as file a disciplinary com-
plaint.
"105. The matter was docketed for investigation as DA13,665. On April 9, 2021,
the ODA received respondent's response to Cooper's complaint. In his response, re-
spondent stated that it was not his intent to convey a threat to Cooper when he emailed
[B.S.]'s letter to her. Respondent indicated that he was merely following [B.S.]'s direc-
tives in forwarding the letter to Cooper and that he did not share [B.S.]'s beliefs regarding
Cooper's conduct in representing [T.].
396 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
"Conclusions of Law
"106. The hearing panel makes the following conclusions of law based on
clear and convincing evidence.
"107. All Kansas lawyers are bound by Kansas Supreme Court Rule 203 to
comply with the Kansas Rules of Professional Conduct (KRPC) found at Rule
240, Rules of the Kansas Supreme Court.
"108. Misconduct—violation of the KRPC—is a ground for discipline by
this Board. Kansas Supreme Court Rule 203(b).
"109. The panel finds, on clear and convincing evidence, that respondent
violated the following rules, in the cases filed against him, as follows:
"Count I-Case No. DA13,349
"110. Judge Wonnell found that respondent committed sanctionable con-
duct in filing, without court permission, a motion alleging misconduct by the
GAL, 'in direct violation of the current, standing applicable order.' Under Rule
220(b), this is prima facie evidence of a violation, imposing on respondent the
burden to disprove the violation—which he failed to do.
"111. Rule 3.4(c), KRPC provides:
'A lawyer shall not: . . . (c) knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no valid obligation
exists';
"112. Respondent violated Rule 3.4(c).
"Count II-Case No. DA13,563
"113. Respondent sent a threat to attorney Joseph Booth that, unless a suit-
able 'settlement' were reached in the Protection From Abuse action filed by
Booth's client—i.e. dismissal—then respondent's client would pursue criminal
charges and tax fraud complaints against Booth's client. Such criminal and tax
fraud claims had nothing to do with the underlying PFA action.
"114. While threatening criminal charges to gain an advantage in a civil
matter is not prohibited, it is necessary 'that the criminal matter is related to the
client's civil claim.['] ABA Formal Opinion 92-363 (July 6, 1992), available
online at https://www.americanbar.org/products/ecd/chapter/219928/.
"115. As noted above, Rule 4.4(a) provides that a lawyer 'shall not use
means that have no substantial purpose other than to embarrass, delay, or burden
a third person.'
"116. Respondent violated Rule 4.4(a) by threatening Booth's client with
criminal and tax fraud charges unless the PFA were settled.
VOL. 317 SUPREME COURT OF KANSAS 397
In re Barnds
"117. Rule 8.4(a), KRPC provides:
'It is professional misconduct for a lawyer to: (a) Violate 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';
"118. Respondent violated Rule 8.4(a), by parroting his client's words and
conveying his client's threats.
"119. Rule 8.4(d), KRPC provides:
'It is professional misconduct for a lawyer [to]: . . .
'(d) engage in conduct that is prejudicial to the administration of justice';
"120. Respondent violated Rule 8.4(d) by threatening Booth's client with
criminal and tax fraud charges unless the PFA were settled. In closing argument,
respondent admitted a violation of Rule 8.4(d) in this Count.
"Count III-Case No. DA13,665
"121. In threatening attorney Cooper and her client, respondent conveyed
his client's threatening letter, and supported with his own words, threatening
criminal complaints against Cooper's clients and disciplinary complaints against
Cooper, unless the divorce action were settled to the satisfaction of respondent's
client.
"122. As noted above, Rule 4.4(a) provides that a lawyer 'shall not use
means that have no substantial purpose other than to embarrass, delay, or burden
a third person.'
"123. Respondent violated Rule 4.4(a) by threatening Cooper and her client
with criminal charges and disciplinary complaints unless the divorce case were
settled to the satisfaction of respondent's client.
"124. As noted above, Rule 8.4(a), KRPC makes it misconduct to violate
the rules or knowingly assist another to do so.
"125. Respondent violated Rule 8.4(a) by threatening Cooper and her client
with criminal charges and disciplinary complaints unless the divorce case were
settled to the satisfaction of respondent's client, and conveying his client's letter
making those threats.
"126.As noted above, Rule 8.4(d) makes it professional misconduct for a
lawyer to engage in conduct that is prejudicial to the administration of justice.
"127. Respondent violated Rule 8.4(d) by threatening Cooper and her client
with criminal charges and disciplinary complaints unless the divorce case were
settled to the satisfaction of respondent's client.
"128. Rule 8.4(g), KRPC provides:
398 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
'It is professional misconduct for a lawyer to: (g) engage in any other conduct
that adversely reflects on the lawyer's fitness to practice law.'
"129. Because of the repeated nature of respondent's conduct in making
threats to gain advantage for his clients, respondent violated Rule 8.4(g). See
also, In re Pyle, 278 Kan. 230, 241[,] 91 P.2d 1222 (2004) (finding violations of
Rules 4.4 and 8.4(d) where respondent 'wrote the letter merely to threaten [op-
posing counsel] with the sole purpose "of attempting to frighten or to put pressure
on opposing counsel to settle the lawsuit upon the terms dictated and desired by
[respondent]."'); and In re Kenny, 289 Kan. 851, 217 P.3d 36 (2009) (finding
violations of Rules 4.4, 8.4(d) and 8.4(g) where lawyer conveyed client's threat
to file disciplinary complaint against opposing counsel unless opposing party
settled claims)[;] as his pattern of misconduct reflects adversely on his very fit-
ness to practice.
"Recommended Discipline
"130. In making this recommendation for discipline, the hearing panel con-
sidered 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 po-
tential or actual injury caused by the lawyer's misconduct, and the existence of
aggravating or mitigating factors.
"131. Under Standard 6.2—Abuse of the Legal Process, Rule 6.22 states:
'Suspension is generally appropriate when a lawyer knows that he or she is vio-
lating a court order or rule, and causes injury or potential injury to a client or a
party, or causes interference or potential interference with a legal proceeding.'
"132. In the present case, respondent acted knowingly, and not negligently,
in filing a motion in direct contravention of a court order expressly requiring him
to submit the motion to the court before filing it. He knew he was violating the
order because (a) he heard the court make the order; (b) he asked the court for
clarification at the time the order was entered; and (c) he reviewed the draft and
then saw the submitted and filed journal entry setting out the court's ruling. Injury
was caused to other parties, who had to pay lawyers to oppose the motion, and
to the legal system, which was burdened and delayed by the filing and prosecu-
tion of the motion.
"133. Under Standard 7.0—Violations of Duties Owed As A Professional,
Rule 7.2 provides:
'Suspension is generally appropriate when a lawyer knowingly engages in con-
duct 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.'
"134. In the present case, respondent acted knowingly, and not negligently,
when he made several inappropriate threats, and filed a motion in direct contra-
vention of a court order that the motion be submitted to the court before it was
VOL. 317 SUPREME COURT OF KANSAS 399
In re Barnds
filed. This knowing conduct violated the duties owed by respondent as a profes-
sional as enumerated above. The conduct also caused injury to [the] parties, court
and the legal system, by requiring the expenditure of lawyer and court time and
resources, and delaying the proceedings.
"Aggravation and Mitigation
"135. Pursuant to Rule 226(a)(1)(C), the panel considered and applied the
following aggravating and mitigating circumstances. Aggravation or aggravating
circumstances are any considerations or factors that may justify an increase in
the degree of discipline to be imposed. Mitigation or mitigating circumstances
are any considerations or factors that may justify a reduction in the degree of
discipline to be imposed. Mitigating factors will not excuse a violation and are
to be considered only when determining the nature and extent of discipline to be
administered.
"136. The panel applied the following aggravating factors from Rule 226:
(c) a pattern of misconduct—the three charges are quite similar, and there was
evidence that respondent has engaged in similar conduct in at least one other
case;
(d) multiple offenses—respondent is found to have violated a number of rules,
in more than one case; and
(g) refusal to acknowledge wrongful nature of the conduct—respondent, while
acknowledging most of the facts alleged, denied any violation of the KRPC
and—while acknowledging some of his conduct to be 'stupid'—he did not admit
that any of it was misconduct.
"136.[sic] The panel applied the following mitigating factors from Rule
226:
(a) absence of a prior disciplinary record—respondent has had no prior com-
plaints;
(b) absence of a dishonest or selfish motive—it appears that respondent's mo-
tive was always to advance the cause of his clients, albeit sometimes overly
zealously;
(f) inexperience in the practice of law—at the time of the first complaint, re-
spondent had been practicing law for a total of seven years, and he had prac-
ticed domestic relations law for some period less than that;
(g) previous good character and reputation in the community including any let-
ters from clients, friends, and lawyers in support of the character and general
reputation of the attorney—it appears from Google ratings, Super Law-
yers—Rising Stars, Attorney and Practice Magazine, and Expertise.com
Best Divorce Lawyers, that respondent enjoys some degree of recognition
among members of the public and some other members of the Bar. The
400 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
panel would wish for letters of support from other lawyers separate from
the respondent's own sister, who happens to be a lawyer but might be ex-
pected to express words of support regardless of the situation. But the vari-
ous online ratings are sufficient to demonstrate some degree of respondent's
reputation in the community;
(k) other sanctions—the panel does not conclude that the imposition of sanc-
tions by the various courts as described were sufficient to mitigate the dis-
cipline here recommended; and
(l) remorse—the respondent repeatedly stated his regret for the conduct, and
that, given the opportunity, he would not repeat it.
"Discipline
"137. Based on the Findings of Fact and Conclusions of Law set forth
above, and applying the Standards described above, the panel concludes and rec-
ommends that respondent be suspended for a period of six months.
"Probation Plan
"138. On October 4, 2022, respondent timely presented a proposed proba-
tion plan in case the hearing panel found one or more violations of the rules by
clear and convincing evidence. Respondent complied with Rule 227(a) by timely
submitting a plan and with Rule 227(c) by complying with the terms of the pro-
bation plan at least fourteen days prior to the hearing.
"139. In his probation plan, respondent proposes, during the following
twelve months:
a. Monthly one-hour coaching sessions with Professor Michael Hoeflich
of the University of Kansas School of Law, with Professor Hoeflich
reporting to the ODA quarterly;
b. Using the services of the Kansas Lawyers Assistance Program
(KALAP) by:
(1) Implementing improvements suggested by KALAP;
(2) Meeting with KALAP mentor, Jace McClasky, an experienced
family law practitioner at least once per month;
(3) Attending KALAP therapy sessions; and
(4) Attending KALAP resiliency group meetings periodically.
c. Respondent cites two ethics CLE courses he has attended in the past
fourteen months, and states that he will attend one-hour of additional
ethics CLE per month, including five hours on civility and profession-
alism, over and above the hours required by Kansas Supreme Court
Rule 804.
VOL. 317 SUPREME COURT OF KANSAS 401
In re Barnds
d. Respondent will write and provide to the ODA memorandum on the
key learning points from his coaching sessions and CLE.
e. Respondent will engage in collaboration with other members of his law
firm.
"140. The panel finds that this proposed plan, while apparently workable,
very substantial, and very detailed, it does not provide adequate safeguards to
address the violations listed above, to protect the public while the plan can and
should correct the violations found above, and is in the best interest of the bar
and the public, the plan's proposed duration is too short. Therefore, the probation
plan proposed by the respondent is rejected. However, the panel does believe that
with one addition—requiring the plan to be in place for two years instead of
one—the proposed plan would provide adequate safeguards to address the vio-
lations listed above, to protect the public, and to comply with the KRPC, that it
can and should correct the violations found above, and is in the best interest of
the bar and the public. So, with the additional condition that the probation plan
remain in place for two years from the date of this order (rather than the one year
proposed by the respondent), all of the other terms of the respondent's proposed
probation plan are accepted and put into place, starting on the date of this Order.
"Recommendation of the Hearing Panel
"Therefore, based upon the foregoing Findings of Fact and Conclusions of
Law, the panel recommends that the respondent be suspended for a period of
three months, but that this discipline be suspended and that respondent be placed
on the probation plan he submitted with the additional condition that it remain in
place and be complied with for a period of two years from the date of this final
hearing report.
"Costs are assessed against the respondent in an amount to be certified by
the ODA.
"Concurring and Dissenting Opinion
"I concur in the other panel members' decisions on Case Nos. DA13,349
and DA13,665, but dissent on Case No. DA13,563, which I would vote to
dismiss. I also dissent from the other panel members' decision as to disci-
pline, and I vote for public censure.
"141. The ODA and majority opinion cites Kansas Supreme Court Rule 220
reciting that a prior judicial decision based upon the same conduct as prima facie
evidence of misconduct. With regard to Case No. DA13,563 the District Court
DENIED the complainant's motion for sanctions. The trial court's decision is
based upon the standard of proof of a preponderance of the evidence. In this
proceeding, the applicable standard of proof is 'clear and convincing'. Further,
Rule 220 provides that the party opposing the prior decision has the burden of
proof to overcome the prima facie evidence of the prior adjudication. In this case,
402 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
the ODA did not provide clear and convincing evidence to overcome the pre-
sumption created by the operation of Rule 220.
"142. As to discipline, I dissent for the reason that these cases present the
first opportunity for discipline to affect the conduct of respondent. It is clearly
proven and true that Judge Wonell's [sic] civil adjudication in 2019, based upon
the same conduct which first occurred in 2017, was a judicial determination on
the issue of civil liability, not professional responsibility. Thus, no prior disci-
pline has been imposed. Secondly, the second motion for sanctions resulted in
dismissal of the sanctions motion said adjudication upon similar conduct as the
present complaint in Case No. DA13,563 occurred in 2020 and the trial court
decision entered in August of 2020. Therefore, at that time, there was no prior
imposed discipline. Finally, in Case No. DA13,663 the conduct of respondent in
March of 2021 is clearly misconduct as pronounced in the majority decision.
However, there was no prior discipline imposed according to our system. There
was no evidence given at hearing of prior reprimand nor cautionary letter to re-
spondent from the ODA. Therefore, in my opinion, the imposition of 'suspension'
is not fair to a practicing attorney with no prior disciplinary history. Both cases
in which I concur are first offenses.
"143. While each case is serious giving rise to the need for discipline, since
the filing of the last action in March of 2021, there are no further instances of
bad conduct of respondent brought to our attention. Perhaps retaining good coun-
sel, receiving the mentoring that has thus far occurred is sufficient to correct the
misconduct and further dissuade others from considering use of the woeful tac-
tics as shown in these cases. I was clearly convinced that resoibdebt [sic] had
truthfully and professionally assisted in the investigation of all three of the com-
plaints, assisted the assigned investigator and testified truthfully during the hear-
ing of these cases. Since the ODA chose not to hear from the 'boots on the ground'
investigator, this panel heard from the investigator only through the presentation
of evidence by respondent. This testimony of Mr. Rowe, the assigned investiga-
tor, carries great weight with me. No one testified nor was heard to say that di-
version would not have been a fair and reasonable resolution to the complaints,
including the judges and attorney's who labored, endured and judged the prior
bad acts of respondent. The testimony of Mr. Rowe, shedding light on the assis-
tance of respondent, providing the background and obtaining the opinions of
those involved, must not and cannot be ignored. If these seasoned lawyers and
judges were satisfied with diversion, then perhaps the least sanction likely to do
the most good, should now be administered.
"144. It is for these reasons that I concur in the findings of misconduct in
Case Nos. DA13,349 and DA13,665 even though the conduct at issue in Case
No. DA13,349 occurred in 2017 and July of 2018. The sequence of events sheds
light to this analysis. The first abusive threat was in 2017. The formal complaint
was not filed until September of 2022. As to discipline, there was no explanation
of the delay in bringing these cases to hearing and this fact alone weighs heavily
in my reasoning that 'suspension' is simply too harsh. It is my hope that if re-
spondent had been timely punished for the 2017 and 2018 conduct, we could
VOL. 317 SUPREME COURT OF KANSAS 403
In re Barnds
have avoided the remainder. Censure is more in line with violations of the MRPC
for first time serious breaches of these pillars of professionalism.
"145. I dissent from imposing discipline under Rule 8.4(g) as such imposi-
tion of discipline is not supported by the evidence. As stated above, there has
been no prior discipline upon which to opine respondent's conduct reflects a head
strong disposition to engage in unprofessional conduct and therefore, unfit to
practice law. The course of these three cases and public censure is a serious sanc-
tion and it adequately protects the public and provides considerable guidance for
the benefit of all. Public censure is warranted."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the
panel's findings, and the parties' arguments and determines whether
KRPC violations exist and, if they do, what discipline should be im-
posed. Attorney misconduct must be established by clear and convinc-
ing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011);
see Supreme Court Rule 226(a)(1)(A) (2023 Kan. S. Ct. R. 281).
"'Clear and convincing evidence is "evidence that causes the factfinder
to believe that 'the truth of the facts asserted is highly probable.'"'" In
re Murphy, 312 Kan. 203, 218, 473 P.3d 886 (2020).
The respondent was given adequate notice of the formal com-
plaint, to which he filed an answer. The respondent initially filed ex-
ceptions to the final hearing report but later withdrew them. Therefore,
the panel's factual findings are considered admitted. Supreme Court
Rule 228(g)(1), (2) (2023 Kan. S. Ct. R. 288). The evidence before the
hearing panel clearly established the charged misconduct violated
KRPC 3.4(c) (2023 Kan. S. Ct. R. 394) (knowingly disobey an obliga-
tion under the rules of a tribunal except for an open refusal based on an
assertion that no valid obligation exists), KRPC 4.4(a) (2023 Kan. S.
Ct. R. 405) (shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third person), KRPC 8.4(a) (2023
Kan. S. Ct. R. 433) (violate or attempt to violate the rules of profes-
sional conduct, knowingly assist or induce another to do so, or to do so
through the acts of another), KRPC 8.4(d) (engage in conduct that is
prejudicial to the administration of justice), and KRPC 8.4(g) (engage
in any other conduct that adversely reflects on the lawyer's fitness to
practice law).
404 SUPREME COURT OF KANSAS VOL. 317
In re Barnds
The only remaining issue is to determine the appropriate discipline
for the respondent's violations. Although the hearing panel first pro-
posed a six-month suspension, its final recommendation was to sus-
pend respondent for three months, but that this discipline be suspended
and that the respondent be placed on the probation plan he submitted
with the added condition that it remain in place for two years from the
date of the final hearing report. One member of the hearing panel con-
curred in the panel's decisions on case nos. DA13,349 and DA13,665
but dissented with respect to case no. DA13,563. This member also
dissented from the other panel members' decision as to discipline. The
Disciplinary Administrator's office agrees with the panel's recommen-
dation.
After carefully considering the evidence presented, as well as the
ABA Standards for Imposing Lawyer Sanctions, we adopt the panel's
findings and conclusion, except for the recommendation that the pro-
bation plan be retroactively effective from the date of the final hearing
report. We conclude it is in the best interest of the bar and the public to
make the respondent's probation plan effective from the date this opin-
ion is filed. Respondent is therefore suspended for three months, with
the three-month suspension stayed pending successful completion of a
two-year probation period, the terms of which are in the respondent's
proposed probation plan, effective from the date this opinion is filed.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Christopher C. Barnds is sus-
pended for a period of three months from the practice of law in the state
of Kansas, effective from the date this opinion is filed, with the three-
month suspension stayed pending successful completion of a two-year
probation period, in accordance with Supreme Court Rule 225(a)(3)
(2023 Kan. S. Ct. R. 281) for violating KRPC 3.4(c), 4.4(a), 8.4(a),
8.4(d), and 8.4(g).
IT IS FURTHER ORDERED that the costs of these proceedings be
assessed to the respondent and that this opinion be published in the of-
ficial Kansas Reports.
VOL. 317 SUPREME COURT OF KANSAS 405
In re Ayesh
No. 126,105
In the Matter of MARK GREGORY AYESH, Respondent.
(530 P.3d 731)
ORIGINAL PROCEEDING IN DISCIPLINE
ATTORNEY AND CLIENT—Disciplinary Proceeding—Indefinite Suspen-
sion.
Original proceeding in discipline. Opinion filed June 16, 2023. Indefinite
suspension.
Matthew J. Vogelsberg, Chief Deputy Disciplinary Administrator, argued
the cause and was on the formal complaint for the petitioner.
Gregory Alan Andersen, of Law Offices of Gregory Alan Andersen, of
Wichita, argued the cause, and Mark G. Ayesh, respondent, argued the cause pro
se.
PER CURIAM: This is an attorney discipline proceeding against
Mark Gregory Ayesh, of Wichita, who was admitted to practice law in
Kansas in April 1979.
This court suspended Ayesh's license to practice law on May
7, 2021. See In re Ayesh, 313 Kan. 441, 485 P.3d 1155 (2021).
About six months later, the Disciplinary Administrator's office
filed another formal complaint against Ayesh alleging violations
of the Kansas Rules of Professional Conduct. This complaint
stemmed from Ayesh's unauthorized practice of law after this
court had suspended his license.
The parties entered into a summary submission agreement un-
der Supreme Court Rule 223 (2023 Kan. S. Ct. R. at 277). Ayesh
admitted that he violated the Kansas Rules of Professional Con-
duct (KRPC)—specifically KRPC 5.5(a) (2023 Kan. S. Ct. R. at
411) (unauthorized practice of law) and KRPC 8.4(c) (2023 Kan.
S. Ct. R. at 433) (engaging in conduct involving dishonesty)—and
Kansas Supreme Court Rule 231(b) (2023 Kan. S. Ct. R. at 292)
(unauthorized practice of law). The parties also stipulated to the
content of the record, the findings of fact, the conclusions of law,
and the applicable aggravating and mitigating circumstances.
They additionally agreed to waive a formal hearing and to recom-
mend the sanction of indefinite suspension. See Rule 223(b) (de-
tailing requirements for summary submission agreements).
406 SUPREME COURT OF KANSAS VOL. 317
In re Ayesh
The chair of the Board for Discipline of Attorneys approved
the summary submission and cancelled a hearing on the formal
complaint. See Supreme Court Rule 223(e) (2023 Kan. S. Ct. R.
at 278). The summary submission was filed with this court for
hearing.
Before us, the parties recommend a finding of misconduct and
the imposition of a sanction of indefinite suspension.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant portions of the summary submission agreement
follow.
"Findings of Fact
. . . .
"6. On April 6, 2021, K.E.B. consulted with respondent about preparing a
prenuptial agreement. K.E.B. was planning on marrying R.G. on October 9,
2021.
"7. At the time of the consultation, respondent had a disciplinary case
pending before the Supreme Court. Respondent did not inform K.E.B. of his
pending disciplinary case. Ultimately, respondent agreed to prepare a prenuptial
agreement for K.E.B.
"8. On April 8, 2021, respondent mailed a cover letter and a draft of a Cohabitation
and Antenuptial Agreement to K.E.B. In the cover letter, respondent informed K.E.B. that
she and R.G. would need to exchange financial statements with one another. Respondent
also informed K.E.B. that R.G. needed to retain his own attorney to review the agreement
for him. Respondent also noted that '[t]he attorneys would also sign Certificates to the
Agreement. Of course, I'll be signing for you.'
"9. The certificate respondent said he would be signing stated in relevant part:
'[K.E.B.] has consulted with me in connection with her entering into the foregoing
premarital agreement with [R.G.] and I have advised her as to her rights under such agree-
ment and her legal rights in the absence of such agreement. During such consultation, I
reviewed with her the financial statement of [R.G.], which is attached as Exhibit A to such
agreement.'
"10. Finally, respondent stated in the cover letter: 'I understand the wedding date is
October 9, 2021. It is not recommended that you wait until the last moment to have this
Agreement reviewed and signed.'
"11. The language of the cover letter and the certificate respondent was to sign con-
templated that respondent would be providing additional legal work and advice to K.E.B.
prior to her signing the agreement.
VOL. 317 SUPREME COURT OF KANSAS 407
In re Ayesh
"12. On May 7, 2021, the Supreme Court issued its opinion in respondent's discipli-
nary case, suspending respondent for three years but allowing the suspension to be stayed
after six months if respondent entered into a probation plan approved by the ODA. See
Matter of Ayesh, 313 Kan. 441, 471, 485 P.3d 1155 (2021).
"13. In the opinion, the Supreme Court ordered respondent to comply with Supreme
Court Rule 231(a)(1) (2022 Kan. S. Ct. R. at 292), which required him, among other things,
'to notify in writing each client that the client should obtain new counsel because the attor-
ney is suspended or disbarred and is no longer authorized to practice law in Kansas.'
"14. Supreme Court Rule 231(a)(2) states: 'No later than 30 days after the Supreme
Court issues an order suspending an attorney's license to practice law . . . the attorney must
provide an affidavit to the Supreme Court certifying that the attorney complied with sub-
section (a)(1).'
"15. On June 25, 2021, respondent filed his Rule 231 affidavit with the Supreme
Court. The affidavit stated in relevant part that respondent 'has read Rule 231 and has com-
plied with all aspects including notice to clients, opposing counsel and courts concerning
his suspension.'
"16. Prior to filing the affidavit, respondent never informed K.E.B. of his suspen-
sion. At the time of filing his affidavit, respondent had not received any communications
from K.E.B. regarding the cohabitation and antenuptial agreement he had sent to her.
Accordingly, respondent 'assumed that the wedding was a nonevent.'
"17. Rule 231(b) provides that it is 'the unauthorized practice of law and a viola-
tion of Kansas Rules of Professional Conduct 5.5 for an attorney to continue to practice
law in Kansas after the Supreme Court issues an order suspending or disbarring the at-
torney.'
"18. The Supreme Court has stated that the practice of law includes giving '"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 court."
[Citation omitted.]' State ex rel. Stephan v. Williams, 246 Kan. 681, 689, 793 P.2d 681
(1990).
"19. In addition to providing a general definition of the practice of law, the Su-
preme Court has established guidelines for the type of law-related work a suspended or
disbarred attorney may do:
'"[A]n attorney who has been disbarred or suspended from the practice of law is per-
mitted 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. Any contact with a client is prohibited. Although not an
inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be
present during conferences with clients, talk to clients either directly or on the telephone,
sign correspondence to them, or contact them either directly or indirectly."' In re Juhnke,
273 Kan. 162, 166, 41 P.3d 855 (2002) (quoting In re Wilkinson, 251 Kan. 546, 553-54,
834 P.2d 1356 [1992]).
408 SUPREME COURT OF KANSAS VOL. 317
In re Ayesh
See also In re Jones, 291 Kan. 405, 420-21, 241 P.3d 90 (2010) (concluding that a
suspended attorney that fails to abide by the Wilkinson restrictions violates KRPC 5.5[a]).
"20. On August 16, 2021, K.E.B. sent an email to respondent, asking whether
R.G.'s attorney, Carolyn Sue Edwards, had contacted him. Respondent replied on Au-
gust 19, stating 'not yet.'
"21. In September 2021, respondent and Edwards discussed revisions to the
agreement.
"22. On September 10, 2021, K.E.B. sent a follow-up email, asking respondent
again whether he had heard from Edwards. Respondent replied that same day, stating,
'Yes making some revisions.'
"23. On September 16, 2021, respondent sent a letter to K.E.B., stating that based
on conversations he had with Edwards, he had made changes to the agreement and was
providing her with a draft of the current version for her review. Notably, the respondent's
letterhead identified respondent's business as 'Ayesh Accounting.'
"24. Paragraph 14 of the draft agreement stated:
'Each party has had the opportunity to be represented in negotiations for and in the
preparation of this Cohabitation and Antenuptial Agreement by counsel of his or her
choosing. HUSBAND has been represented by Carolyn Sue Edwards. WIFE has been
represented by Mark G. Ayesh. Each party has read this agreement and is fully aware
of the contents hereof and of its legal effect.'
"25. On September 27, 2021, respondent, based on further discussions he had
with K.E.B., made changes to the agreement. That same day, he faxed a cover letter and
a current version of the agreement to Edwards as well as emailed and mailed a cover
letter and copy of the agreement to K.E.B.
"26. In a cover letter to K.E.B. regarding the agreement, respondent advised her
to 'execute four originals of the Agreement so that each party has an original and each
counsel has an original. I am sending by regular mail four copies of the Agreement. If
you prefer, you can come by the office and sign. We have several notaries available.'
"27. Like the September 16 version of the agreement, the September 27 version
of the agreement again identified respondent as K.E.B.'s counsel, who represented her
'in negotiations for and in the preparation of this Cohabitation and Antenuptial Agree-
ment.'
"28. Upon receiving respondent's fax and seeing that his letterhead indicated he
was doing business as an accountant rather than a lawyer, Edwards checked on the status
of respondent's law license and discovered that he had been suspended in May 2021.
"29. The next day, September 28, Edwards informed R.G. and K.E.B. of
respondent's suspension and advised K.E.B. that she needed a licensed attorney
to review the agreement for her.
VOL. 317 SUPREME COURT OF KANSAS 409
In re Ayesh
"30. That same day, R.G. and K.E.B. went to respondent's office and confronted
him about the suspension. Respondent admitted to being suspended and offered to have
a lawyer in his office represent K.E.B. so the document could be executed. Ultimately,
K.E.B. and R.G. left the office without signing the agreement.
"31. On October 4, 2021, ODA received Edwards' complaint regarding respond-
ent's conduct. The ODA docketed the matter for investigation as DA13,759. Respond-
ent cooperated in the subsequent investigation of the complaint.
"Conclusions of Law
"32. Under Supreme Court Rule 223(b)(1), the respondent admits that he engaged
in misconduct. Under Rule 223(b)(2)(C), the ODA and the respondent stipulate that the
findings of fact stated above constitute clear and convincing evidence of violations of
the following rules:
"KRPC 5.5(a) (unauthorized practice of law) and Kansas Supreme
Court Rule 231(b)
"33. KRPC 5.5(a) states that a 'lawyer shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction, or assist another in
doing so.' Furthermore, Rule 231(b) states that '[i]t is the unauthorized practice of law
and a violation of Kansas Rule of Professional Conduct 5.5 for an attorney to continue
to practice law in Kansas after the Supreme Court issues an order suspending or disbar-
ring the attorney.' The respondent violated KRPC 5.5(a) and Rule 231(b) by practicing
law after the Supreme Court suspended him on May 7, 2021. After that date, respondent
performed legal work for K.E.B. by communicating with attorney Edwards on K.E.B.'s
behalf regarding the cohabitation and antenuptial agreement and revising the agreement
based on those communications. He also provided legal advice to K.E.B. regarding the
changes made to the agreement.
"KRPC 8.4(c) (engaging in conduct involving dishonesty)
"34. KRPC 8.4(c) states that it is professional misconduct for a lawyer to engage
in conduct involving dishonesty. The respondent violated KRPC 8.4(c) by continuing
to conduct himself as a lawyer after his law license was suspended by the Supreme
Court. Instead of informing K.E.B. of his suspension in August 2021 when she reached
out to him regarding the pending cohabitation and antenuptial agreement, respondent
proceeded to perform legal work for K.E.B. by engaging in communications with Ed-
wards about the agreement, making subsequent changes to the agreement, and advising
K.E.B. on those changes. Finally, in the drafts of the agreement and in the cover letters
respondent sent to K.E.B. and Edwards in September 2021, he identified himself as
'counsel' for K.E.B. even though he was not authorized to practice law at that time.
"Aggravating and Mitigating Evidence
"35. Under Rule 223(b)(2)(D), the ODA and the respondent stipulate that the fol-
lowing aggravating and mitigating factors are applicable in this case:
410 SUPREME COURT OF KANSAS VOL. 317
In re Ayesh
"Aggravating Factors
"36. Prior Disciplinary Offenses. The respondent has been disciplined on
four prior occasions.
i. In 2006, the ODA informally admonished the respondent for violating
4.2 (communication with person represented by counsel).
ii. In 2008, the ODA informally admonished the respondent for violating
KRPC 1.1 (competence) and KRPC 1.2 (scope of representation).
iii. In 2013, the respondent successfully completed an attorney diversion
agreement for violating KRPC 1.15 (safeguarding client property).
iv. In May 2021, the Supreme Court suspended respondent for violating
KRPC 1.2 (scope of representation); KRPC 1.6 (confidentiality);
KRPC 1.7 (conflict of interest: current clients); KRPC 1.8 (conflict of
interest: current clients); KRPC 1.9 (conflict of interest: former cli-
ents); KRPC 1.16 (termination of representation); KRPC 3.1 (merito-
rious claims and contentions); KRPC 3.3 (candor to the tribunal);
KRPC 4.1 (truthfulness in statements to others); KRPC 8.3 (failure to
report misconduct); KRPC 8.4(c) (engaging in dishonest conduct); and
KRPC 8.4(d) (conduct prejudicial to the administration of justice). Re-
spondent engaged in the current misconduct while serving the suspen-
sion for these rule violations.
"37. Dishonest or Selfish Motive. Respondent acted with a dishonest motive
when he failed to notify K.E.B. of his suspension when she reached out to him
in August 2021 regarding the pending cohabitation and antenuptial agreement
and proceeded to act as her attorney in communicating with Edwards regarding
changes to the agreement and providing advice to K.E.B. regarding those
changes.
"38. Substantial Experience in the Practice of Law. Respondent was admit-
ted to the Kansas Bar in 1979. When respondent was suspended in May 2021, he
had been practicing law for more than forty years.
"Mitigating Factors
"39. Full and Free Disclosure to Disciplinary Board or Cooperative Atti-
tude Toward Proceedings. Respondent fully cooperated in the investigation of
disciplinary complaint. Once the ODA's filed its formal complaint, Respondent
filed an answer, admitting to all allegations. Lastly, respondent willingly entered
into this summary submission agreement, stipulating to facts and rule violations.
"40. 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 was an active and productive
member of the bar of Wichita, Kansas. The respondent also enjoys the respect of
VOL. 317 SUPREME COURT OF KANSAS 411
In re Ayesh
his peers and generally possesses a good character and reputation as evidenced
by numerous letters of support.
"41. Remorse. The respondent is genuinely remorseful for engaging in the
misconduct in this case.
"Recommendation for Discipline
"42. Under Supreme Court Rule 223(b)(3), the ODA and respondent agree
to a recommended sanction of indefinite suspension and that such suspension
will begin to run on the date the parties execute this summary submission agree-
ment."
DISCUSSION
In a disciplinary proceeding, we consider the evidence and the
parties' arguments and determine whether KRPC violations exist
and, if they do, the appropriate discipline. Attorney misconduct
must be established by clear and convincing evidence. In re Spie-
gel, 315 Kan. 143, 147, 504 P.3d 1057 (2022); see Supreme Court
Rule 226(a)(1)(A) (2023 Kan. S. Ct. R. at 281). "'Clear and con-
vincing evidence is 'evidence that causes the factfinder to believe
that "the truth of the facts asserted is highly probable."'" 315 Kan.
at 147 (quoting In re Lober, 288 Kan. 498, 505, 204 P.3d 610
[2009]).
Respondent Ayesh had adequate notice of the formal com-
plaint, to which he filed an answer. He waived formal hearing after
entering into a summary submission agreement. In this agreement,
the parties agreed they would take no exception to the findings of
facts and conclusions of law. By Supreme Court rule, the parties
thus admitted the factual findings and conclusions of law in the
summary submission. See Supreme Court Rule 228(g)(1) (2023
Kan. S. Ct. R. at 288).
We adopt the findings and conclusions in the summary sub-
mission, which taken together with the parties' stipulations estab-
lish by clear and convincing evidence that Ayesh's conduct vio-
lated KRPC 5.5(a) and 8.4(c) and Rule 231(b). The remaining is-
sue is discipline.
The parties' summary agreement recommending discipline is
advisory only and does not prevent us from imposing a greater or
lesser discipline. Kansas Supreme Court Rule 223(f) (2023 Kan.
S. Ct. R. at 279). That said, after review of the stipulated facts and
412 SUPREME COURT OF KANSAS VOL. 317
In re Ayesh
conclusions of law we agree with the recommendation that indef-
inite suspension is the appropriate remedy. We do not agree, how-
ever, with the recommendation that the suspension begin to run
on the date when the parties executed the summary submission
agreement. Instead, we order that the suspension begins to run on
the date of this decision.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Mark Gregory Ayesh is
hereby suspended from the practice of law in the state of Kansas
for an indefinite period, effective the date of this opinion in ac-
cordance with Supreme Court Rule 225(a)(2) (2023 Kan. S. Ct. R.
at 281) for violating KRPC 5.5(a) and 8.4(c) and Rule 231(b).
IT IS FURTHER ORDERED that respondent shall comply with
Rule 231 (notice to clients, opposing counsel, and courts follow-
ing suspension or disbarment).
IT IS FURTHER ORDERED that respondent shall comply with
Supreme Court Rule 232 (2023 Kan. S. Ct. R. at 293) (reinstate-
ment following suspension or disbarment) when seeking reinstate-
ment.
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.
VOL. 317 SUPREME COURT OF KANSAS 413
State v. Moncla
No. 125,113
STATE OF KANSAS, Appellee, v. DAVID MONCLA, Appellant.
___
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Successive Motion to Correct Illegal Sentence—Appli-
cation of Res Judicata. Res judicata bars a defendant from raising the same
claim in a second or successive motion to correct an illegal sentence under
K.S.A. 2022 Supp. 22-3504, unless subsequent developments in the law
shine new light on the original question of whether the sentence was illegal
when pronounced.
2. SAME—Successive Motion to Correct Illegal Sentence—Party has Burden
of Proof to Show Subsequent Development in Law. A party filing a succes-
sive motion to correct an illegal sentence bears a threshold burden to prove
that a subsequent development in the law undermines the earlier merits de-
termination. A successive motion that merely seeks a second bite at the il-
legal sentence apple is susceptible to dismissal according to our longstand-
ing, common-law preclusionary rules.
Appeal from Sedgwick District Court; ERIC N. WILLIAMS, judge. Opinion
filed June 23, 2023. Affirmed.
David L. Miller, of The Law Office of David L. Miller, LLC, of Wichita,
was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney,
and Kris Kobach, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
WALL, J.: This is the second time that David Moncla has ap-
pealed a district court's denial of a motion to correct an illegal sen-
tence to our court. As he did in his prior appeal, Moncla argues
that the district court's irregular procedures divested it of subject-
matter jurisdiction to impose restitution. See State v. Moncla, 301
Kan. 549, 554, 343 P.3d 1161 (2015). But the State argues that
Moncla is barred from bringing that claim again under a legal doc-
trine called res judicata. That doctrine generally prevents a person
from raising a particular claim after a court has ruled on it. See
State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014).
414 SUPREME COURT OF KANSAS VOL. 317
State v. Moncla
We agree with the State that Moncla has raised the same
claim. And because no later development in the law has under-
mined our earlier decision on the legality of Moncla's sentence,
we affirm the district court's order.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted Moncla of first-degree murder in 1995. He
is serving a life sentence with no chance of parole for 40 years (a
so-called "hard 40" sentence). Our court affirmed Moncla's con-
viction and sentence on direct appeal. State v. Moncla, 262 Kan.
58, 936 P.2d 727 (1997). And his attempt to pursue habeas-corpus
relief proved unsuccessful. Moncla v. State, No. 101,979, 2010
WL 2978032, at *4 (Kan. App. 2010) (unpublished opinion).
This appeal is about the district court's imposition of restitution and
fees. At Moncla's sentencing hearing, the district court stated that the
murder victim's sister-in-law was seeking $13,537.64 in restitution for
the victim's funeral, burial, and other expenses. When Moncla's coun-
sel informed the court that the State had not yet provided receipts sup-
porting that amount, the trial court gave the parties 30 days to deter-
mine restitution, commenting that it would hold a hearing if there was
still a dispute over the amount. When no party requested a restitution
hearing, the court filed a journal entry of sentencing 34 days later. That
journal entry ordered Moncla to pay $164.50 in court costs, $220 in
witness fees, and $13,627.64 in restitution.
Moncla first challenged the district court's procedure for or-
dering restitution in a 2013 motion to correct an illegal sentence
under K.S.A. 22-3504. He argued that the district court lacked
subject-matter jurisdiction to impose restitution, court costs, and
fees because it was not ordered in open court with him present.
State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011) (a sentence
imposed by a court without jurisdiction is illegal); see also K.S.A.
2022 Supp. 22-3504 (same). The district court summarily denied
the motion, meaning that it dismissed the motion "'"without a
hearing or appointment of counsel"'" because it determined that
"'"the motion, files, and records of the case conclusively"'"
showed that Moncla was entitled to no relief. See Jones, 292 Kan.
at 913. On appeal, our court was "satisfied that 'the spirit, if not
the letter' of the proper procedure was followed," so we held that
VOL. 317 SUPREME COURT OF KANSAS 415
State v. Moncla
the district court had subject-matter jurisdiction to impose the res-
titution, costs, and fees. Moncla, 301 Kan. at 554 (citing State v.
Frierson, 298 Kan. 1005, 1021, 319 P.3d 515 [2014]).
Then in 2019, Moncla filed the illegal-sentence motion that is
the subject of this appeal. He again argued that the district court
lacked subject-matter jurisdiction to impose restitution because he
was not present. In Moncla's view, the district court should have
explicitly ordered a continuance of his sentencing hearing and en-
tered the order of restitution within 30 days. He asked the court to
correct the restitution amount via an amended order (called a
"nunc pro tunc" order). Once again, the district court summarily
denied the motion. It determined that Moncla's sentence was not
illegal and that the appellate courts had ruled on his claim.
Moncla now appeals that order. His appeal comes directly to
us because he was convicted of the off-grid crime of first-degree
murder. See K.S.A. 2022 Supp. 22-3601(b)(4).
ANALYSIS
Moncla argues that the district court's sentencing procedures
divested it of jurisdiction to impose restitution. The State insists
that the doctrine of res judicata bars that claim because our court
resolved it in his last appeal. Whether res judicata bars a claim is
a question of law, meaning that we need not defer to the district
court's decision. Kingsley, 299 Kan. at 899. The district court's de-
nial of the illegal-sentence motion embraced the doctrine without
naming it.
As we have said, res judicata prevents a litigant from raising
claims that the courts have resolved. 299 Kan. at 901. The doctrine
generally bars a claim when the same parties are involved, the
same claim was previously raised, and there has been a final judg-
ment on the merits. 299 Kan. at 901.
There is no dispute that this appeal involves the same parties
as Moncla's prior appeal. But Moncla insists that res judicata does
not apply to this appeal for three reasons. First, he argues there
was no final judgment on the merits of his previous illegal-sen-
tence claim. Second, Moncla believes that he raised new claims in
his 2019 motion. Finally, Moncla suggests he can bring this claim
under a limited exception to ordinary res-judicata principles that
416 SUPREME COURT OF KANSAS VOL. 317
State v. Moncla
we have recognized in the illegal-sentence context. Under that ex-
ception, res judicata does not apply if a development in the law
shows that a previous illegal-sentence motion was improperly de-
nied. See State v. Murdock, 309 Kan. 585, 592, 439 P.3d 307
(2019).
We disagree with all three of Moncla's arguments. First, Mon-
cla contends there was no final decision on the merits of his prior
illegal-sentence claim because the district court summarily denied
it. But a summary denial of an illegal-sentence motion is a ruling
on the merits. As we explained above, it means that the district
court ruled that the "'"motions, files, and records of the case con-
clusively show the defendant is not entitled to relief."'" Jones, 292
Kan. at 913. We affirmed the district court's summary denial, and
our decision became final when we issued the mandate in that
case. So there has been a final decision on the merits of Moncla's
2013 illegal-sentence claim.
Second, Moncla argues that he raised a new claim in his 2019
motion. In Moncla's view, the 2019 motion raises a new claim be-
cause he argues that the sentencing court should have ordered a
continuance of his sentencing hearing and resolved restitution
within 30 days. And in his 2013 motion, he argued only that the
district court failed to set restitution while he was present. But
both arguments go to the same claim—whether the district court's
sentencing procedures deprived it of subject-matter jurisdiction to
order restitution. And in his prior appeal, we specifically ad-
dressed the procedural nuances the district court employed and
concluded that they did not deprive the court of jurisdiction. Mon-
cla, 301 Kan. at 554. Moncla also suggests that his request for a
nunc pro tunc order presents a new claim. We disagree. His re-
quest for that order is simply a different remedy for an underlying
claim challenging the district court's jurisdiction to order restitu-
tion, and our court previously resolved that claim on the merits.
Finally, we disagree with Moncla that the limited exception to
res judicata applies to his successive illegal-sentence claim. That
exception is not, as Moncla suggests, an invitation to reexamine
claims that a defendant believes were incorrectly decided. Instead,
we have simply recognized that K.S.A. 22-3504 gives a defendant
"the opportunity to revisit a merits determination of legality" when
VOL. 317 SUPREME COURT OF KANSAS 417
State v. Moncla
the defendant can point to a "subsequent development in the law" that
shows the prior merits determination "was wrong in the first instance."
Murdock, 309 Kan. at 592. In other words, "true changes in the law
cannot transform a once legal sentence into an illegal sentence, but de-
velopments in the law may shine new light on the original question of
whether the sentence was illegal when pronounced." 309 Kan. at 592.
In the latter case, we have declined to apply the doctrine of res judicata
to a successive illegal-sentence motion.
But Moncla "bears a threshold burden to prove that a subse-
quent development in the law undermines the earlier merits deter-
mination." 309 Kan. at 592. "A successive motion that merely
seeks a 'second bite' at the illegal sentence apple is susceptible to
dismissal according to our longstanding, common-law preclusion-
ary rules." 309 Kan. at 592-93. Here, Moncla points to State v.
Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014), where our court
outlined the appropriate procedure for ordering restitution, as a
subsequent development in the law undermining our earlier merits
determination of legality. But in Moncla's prior appeal, we held
that jurisdiction was proper because the district court had satisfied
"'the spirit, if not the letter'" of Hall's procedures. Moncla, 301
Kan. at 554 (quoting Frierson, 298 Kan. at 1021). So Moncla has
not met his burden to show that a development in the law has un-
dermined our prior decision.
Because the doctrine of res judicata bars Moncla's successive
claim, we affirm the district court's summary denial of his illegal-
sentence motion.
Judgment of the district court is affirmed.
418 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
No. 123,063
KANSAS FIRE AND SAFETY EQUIPMENT, a Kansas Corporation;
HAL G. RICHARDSON d/b/a BUENO FOOD BRAND and TOPEKA
VINYL TOP; and HAL G. RICHARDSON and DOUG VESS, General
Partners in
MINUTEMAN SOLAR FILM, a Kansas Partnership,
Appellants/Cross-appellees, v. C
ITY OF TOPEKA, KANSAS,
Appellee/Cross-appellant.
___
SYLLABUS BY THE COURT
1. STATUTES—Determination Whether Statute Implies Private Right of Ac-
tion—Two Part Test. Kansas courts generally follow a two-part test to de-
termine whether a statute implies a private right of action. First, the party
must show that the statute was designed to protect a specific group of people
rather than to protect the general public. Second, the court must review leg-
islative history to determine whether a private right of action was intended.
2. EMINENT DOMAIN—No Implied Private Right of Action under K.S.A.
26-518. K.S.A. 26-518 does not create an implied private right of action
allowing displaced persons to sue a condemning authority for relocation
benefits and assistance in a civil cause of action filed directly in district
court.
3. SAME—Eminent Domain Procedure Act Limits Judicial Review in Appeals
to Just Compensation under Statute. The Eminent Domain Procedure Act,
K.S.A. 26-501 et seq., limits the scope of judicial review in eminent-domain
appeals to the issue of just compensation as defined by K.S.A. 26-513. Re-
location benefits are not a component of just compensation under K.S.A.
26-513.
4. ADMINISTRATIVE LAW—Act Provides Remedy to Appeal Relocation
Benefits—Procedure. K.S.A. 58-3509(a) of the Kansas Relocation Assis-
tance for Persons Displaced by Acquisition of Real Property Act, K.S.A.
58-3501 et seq., provides a comprehensive remedy for vindicating the stat-
utory right to relocation benefits and assistance. K.S.A. 58-3509(a) allows
a displaced person to appeal to the state, agency, or political subdivision
within 60 days of the initial determination of relocation benefits. If such an
appeal is made, an independent hearing examiner shall be appointed by the
condemning authority within 10 days and a determination of the appeal
made within 60 days. After administrative review is complete, any party
wishing to appeal the ruling of the hearing examiner may do so by filing a
written notice of appeal with the clerk of the district court within 30 days of
the hearing examiner's decision. Any such appeal to the district court shall
be a trial de novo only on the issue of relocation benefits.
VOL. 317 SUPREME COURT OF KANSAS 419
Kansas Fire and Safety Equipment v. City of Topeka
5. SAME—Statute Provides Party Must Exhaust Administrative Remedies be-
fore Appealing Relocation Benefits and Assistance to District Court. A
party must exhaust their administrative remedies under K.S.A. 58-3509(a)
before appealing a hearing examiner's ruling on the issue of relocation ben-
efits and assistance to the district court. The failure to exhaust such admin-
istrative remedies deprives the district court of subject matter jurisdiction.
Review of the judgment of the Court of Appeals in 62 Kan. App. 2d 341,
514 P.3d 387 (2022). Appeal from Shawnee District Court; RICHARD D.
ANDERSON, judge. Oral argument held March 31, 2023. Opinion filed June 30,
2023. Judgment of the Court of Appeals reversing and remanding to the district
court is affirmed. Judgment of the district court is reversed, and the case is re-
manded with directions.
John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Jones, of To-
peka, argued the cause, and Jason B. Prier, of The Prier Law Firm, L.L.C., of
Lawrence, was with him on the briefs for appellants/cross-appellees.
Shelly Starr, chief of litigation, City of Topeka, argued the cause and was
on the briefs for appellee/cross-appellant.
The opinion of the court was delivered by
WALL, J.: Governmental authorities have inherent power to
take private property for public use. But the exercise of this power
comes at a cost to those whose property is taken. Thus, the Fifth
Amendment to the United States Constitution and Article 12, sec-
tion 4, of the Kansas Constitution prohibit such takings without
just compensation. These constitutional principles are reflected in
the Kansas Eminent Domain Procedure Act (EDPA), K.S.A. 26-
501 et seq., which creates a process for determining just compen-
sation.
But the financial costs of eminent domain are not limited to
the loss of private property. Persons may be displaced when the
government exercises this power. So Kansas law also requires a
condemning authority to provide certain relocation benefits and
assistance to those displaced by the government's exercise of em-
inent domain. Specifically, the EDPA provides that whenever fed-
eral funding is not involved and real property is acquired by a con-
demning authority through negotiation in advance of a condemna-
tion action or through a condemnation action, the authority must
provide relocation payments and assistance to displaced persons.
K.S.A. 26-518(a). The Kansas Relocation Assistance for Persons
Displaced by Acquisition of Real Property Act (KRA), K.S.A. 58-
420 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
3501 et seq., recognizes the same substantive right to relocation
benefits and assistance. See K.S.A. 58-3508. In fact, the language
in the two statutory provisions is nearly identical.
But the EDPA and KRA differ in remedy. The EDPA does
not provide for judicial review of relocation-benefit determina-
tions. Instead, in eminent-domain appeals, the EDPA limits the
district court's scope of review to the issue of just compensation
only. But the KRA provides an administrative remedy designed to
vindicate the statutory right to relocation benefits and assistance
under the EDPA and KRA. Under K.S.A. 58-3509, a displaced
person may appeal the condemning authority's relocation-benefits
determination to an independent hearing examiner. Once the ad-
ministrative remedy has been exhausted, any party dissatisfied
with the examiner's ruling may seek judicial review in the district
court.
Kansas Fire and Safety Equipment, Hal G. Richardson d/b/a
Bueno Foods Brand and Topeka Vinyl Top, and Minuteman Solar
Film (the tenants), were forced to relocate when the City of To-
peka (the City) bought the real property the tenants leased for their
business operations. The tenants alleged that the property was ac-
quired before a condemnation action. And they sued the City to
recover relocation expenses in an action filed directly with the dis-
trict court under the EDPA.
The City moved for summary judgment, arguing there is no
statutory right to judicial review of relocation-benefit determina-
tions under the EDPA. And without a statutory basis for such re-
view, the City claimed the district court lacked subject matter ju-
risdiction over the action. The district court agreed and granted
summary judgment to the City. On appeal, a panel of the Court of
Appeals agreed that the district court lacked subject matter juris-
diction. But the panel held that the proper disposition of the case
was dismissal without prejudice, rather than entry of judgment for
the City. So, the panel reversed and remanded for the district court
to enter such an order. Kansas Fire and Safety Equipment v. City
of Topeka, 62 Kan. App. 2d 341, 353, 514 P.3d 387 (2022).
We granted the tenants' petition for review to determine
whether the district court had subject matter jurisdiction. Ulti-
VOL. 317 SUPREME COURT OF KANSAS 421
Kansas Fire and Safety Equipment v. City of Topeka
mately, we hold that the district court lacked subject matter juris-
diction over the tenants' petition. The EDPA neither provides a
private right of action to recover relocation benefits nor authorizes
judicial review of relocation-benefit determinations in eminent-
domain appeals. In contrast, the KRA does provide an administra-
tive remedy to vindicate the statutory right to relocation benefits.
And once the administrative appeal is completed, the KRA also
authorizes district court review of the hearing examiner's ruling.
But the tenants' failure to exhaust this administrative remedy de-
prived the district court of subject matter jurisdiction under the
KRA. Finally, while K.S.A. 60-2101(d) authorizes appeals to the
district court from certain final judgments and orders of a political
subdivision, this statute does not apply because the KRA provides
a more specific procedure for judicial review. We thus affirm the
judgment of the Court of Appeals.
FACTS AND PROCEDURAL BACKGROUND
This is the second time this case is before us. In 2011, the City
passed an ordinance authorizing a public works project to replace
a structurally deficient drainage system on a tributary to Butcher
Creek. The purpose of the project was to alleviate potential flood-
ing within the city limits. As part of the project, the City entered
negotiations to buy property the tenants leased to operate their
businesses. During negotiations, the City informed the property
owner that it wanted the land vacant before obtaining title. The
owner and the City entered a purchase agreement in September
2013. That agreement required the owner to notify all tenants to
vacate and ensure the property was vacant by early January 2014.
On October 18, 2013, an attorney representing the tenants sent
a letter to the City requesting relocation costs under K.S.A. 26-
518 (if no federal funds were involved in the public works pro-
ject), or the Uniform Relocation Assistance and Real Property Ac-
quisition Policies Act of 1970 (URA) (if federal funds were in-
volved).
The Deputy City Attorney denied the request in an October
31, 2013 letter. The letter stated that no federal funds were in-
volved in the project, thus the City need not pay relocation costs
under K.S.A. 58-3502 (the provision in the KRA providing for
422 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
relocation benefits when federal funds are part of the displacing
project). The letter also stated that the City was purchasing the
property from the owner, rather than acquiring the property
through condemnation, thus the City need not pay relocation costs
under K.S.A. 58-3508 or K.S.A. 26-518.
The tenants later sued for relocation costs. They alleged that
they were entitled to such costs because they were displaced per-
sons as defined by K.S.A. 26-518 of the EDPA and the URA. Ac-
cording to the United States Department of Housing and Urban
Development, the URA "is a federal law that establishes minimum
standards for federally funded programs and projects that require
the acquisition of real property (real estate) or displace persons
from their homes, businesses, or farms."
https://www.hudexchange.info/programs/relocation/overview/#over-
view-of-the-ura. While K.S.A. 26-518 incorporates some provi-
sions of the URA by reference, the URA itself applies only when
federal funds are involved in the displacing project. See City of
Columbia v. Baurichter, 713 S.W.2d 263, 265 (Mo. 1986) (con-
demner must satisfy URA requirements when federal funds in-
volved); see also 42 U.S.C. §§ 4601-4655 (2018). In their petition,
the tenants alleged that the City had represented that no federal
funds were involved, so their cause of action was based solely on
K.S.A. 26-518 of the EDPA.
The City responded by arguing K.S.A. 26-518 did not apply
because the City never intended to condemn the property. The
City also argued that the tenants did not meet the statutory defini-
tion of "displaced persons" under K.S.A. 26-518. Both parties
moved for summary judgment.
The district court entered summary judgment for the City, rul-
ing that the tenants were not displaced persons under the EDPA.
It also found the uncontroverted facts showed that the City did not
acquire the property "in advance of a condemnation action."
See K.S.A. 26-518 (condemning authority must provide relo-
cation payments and assistance when acquiring real property
"through negotiation in advance of a condemnation action or
through a condemnation action"). The tenants appealed.
The Court of Appeals held that the tenants were displaced per-
sons under the EDPA and that a question of fact existed as to
VOL. 317 SUPREME COURT OF KANSAS 423
Kansas Fire and Safety Equipment v. City of Topeka
whether the City had acquired the property through negotiation
before a condemnation action. The panel thus reversed and re-
manded for the district court to resolve disputed issues of material
fact. Nauheim v. City of Topeka, 52 Kan. App. 2d 969, 975-77,
979-80, 391 P.3d 508 (2016). The tenants petitioned our court for
review. They argued that the panel erred by holding that a dis-
placed person must prove the condemning authority either threat-
ened condemnation or took affirmative acts to condemn the prop-
erty in order to recover relocation benefits under K.S.A. 26-518.
On review, we held that the Court of Appeals erred by requir-
ing a specific evidentiary showing on this factor. Nauheim v. City
of Topeka, 309 Kan. 145, 153, 432 P.3d 647 (2019). Instead, we
concluded that a displaced person may prove the property was ac-
quired through "'negotiation in advance of a condemnation ac-
tion'" by showing "(1) a negotiation resulted in the property's ac-
quisition before any eminent domain proceedings commenced;
and (2) a condemnation would have followed had that negotiation
failed." 309 Kan. at 151-52. We then remanded the case to the
district court for further proceedings "to explore whether the City's
negotiations were in advance of a condemnation action under
K.S.A. 2017 Supp. 26-518." 309 Kan. at 154.
On remand, the tenants moved to amend their petitions to add
parties in interest, but the amended petitions continued to list the
URA and K.S.A. 26-518 as the basis of the tenants' causes of ac-
tion.
The City again moved for summary judgment, arguing there
was no evidence that the City would have condemned the property
if negotiations had failed. And for the first time, the City also ar-
gued that the district court lacked subject matter jurisdiction over
the tenants' cause of action because there is no private right of ac-
tion for relocation benefits under the EDPA. The City asserted that
the tenants should have brought their claim under the KRA but
failed to do so.
In response, the tenants argued that there was a factual dispute
as to whether the City would have condemned the property if ne-
gotiations had failed. As for the jurisdictional challenge, the ten-
ants claimed that the appellate courts had implicitly found subject
matter jurisdiction by ruling on the merits in the previous appeal.
424 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
The tenants also claimed that K.S.A. 26-518 creates a private right of
action and that our court has recognized that a condemning authority
must provide relocation benefits under the two statutorily recognized
circumstances. See Nauheim, 309 Kan. at 151 ("K.S.A. 2017 Supp. 26-
518 identifies two distinct situations in which a condemning authority
must provide relocation benefits to a displaced person: [1] when the
acquisition occurs through negotiation before a condemnation action,
or [2] when the acquisition occurs through a condemnation action.").
The district court ruled that it lacked subject matter jurisdiction and
granted summary judgment to the City. The court reasoned that there was
no private right of action for relocation benefits under K.S.A. 26-518 and
no other statute in the EDPA granted the district court jurisdiction. The
district court also stated that "[h]ad [it] not found subject matter jurisdiction
lacking, summary judgment would not be appropriate" because there was
a disputed question of fact as to whether the City would have condemned
the property if negotiations had failed. The tenants appealed the district
court's ruling on subject matter jurisdiction. The City cross-appealed the
district court's advisory ruling that plaintiffs had demonstrated a genuine
issue of material fact.
A panel of the Court of Appeals affirmed the district court's ruling on
subject matter jurisdiction. Kansas Fire and Safety Equipment, 62 Kan.
App. 2d at 350-51. The panel held that judicial review of eminent domain
proceedings under the EDPA is limited to the issue of just compensation
for a taking, which does not include relocation benefits. 62 Kan. App. 2d
at 346-48. The panel also held that the Legislature did not intend to create
an implied private right of action under K.S.A. 26-518, which would have
invoked the original jurisdiction of the district court under K.S.A. 20-301.
62 Kan. App. 2d at 348-50. The panel declined to reach the merits of the
City's cross-appeal having concluded that jurisdiction was lacking. 62
Kan. App. 2d at 353. Finally, the panel held that the district court should
have dismissed the matter without prejudice rather than granting summary
judgment based on a lack of subject matter jurisdiction. The panel thus
reversed and remanded for the district court to enter such an order. 62 Kan.
App. 2d at 352-53.
The tenants petitioned for review of the panel's jurisdictional holding.
The City conditionally cross-petitioned for review of the district court's ad-
visory ruling that the tenants had shown a genuine issue of material fact as
VOL. 317 SUPREME COURT OF KANSAS 425
Kansas Fire and Safety Equipment v. City of Topeka
to whether the City would have condemned the property if purchase ne-
gotiations had failed.
We granted both petitions. And we heard oral argument from the par-
ties on March 31, 2023. The City did not petition for review of the panel's
holding that the proper disposition of the case was dismissal without prej-
udice. Thus, that issue remains settled in favor of the tenants. See Supreme
Court Rule 8.03(b)(6)(C)(i) (2023 Kan. S. Ct. R. at 56) (Supreme Court
will not consider issues not presented or fairly included in petition for re-
view).
ANALYSIS
The question before us is straightforward: did the district court have
subject matter jurisdiction over tenants' claims for relocation benefits? We
consider four potential theories of subject matter jurisdiction in this matter.
First, the EDPA creates a private right of action permitting displaced per-
sons to sue for relocation benefits in a civil action filed directly in the dis-
trict court. Second, the Legislature created a right to judicial review of re-
location-benefit determinations in eminent-domain appeals under the
EDPA. Third, the Legislature created a right to judicial review of reloca-
tion-benefit determinations under the KRA. And, finally, K.S.A. 60-
2101(d) grants the district court jurisdiction to review relocation-benefit
determinations made by political subdivisions.
We address each theory in turn. Ultimately, we conclude that none of
these theories vest the district court with subject matter jurisdiction.
I. K.S.A. 26-518 Does Not Create a Private Right of Action, Thus the
District Court Did Not Have Original Civil Jurisdiction
We begin our analysis by considering the tenants' primary argument
in support of subject matter jurisdiction—the private-right-of-action the-
ory. The tenants contend that K.S.A. 26-518 creates a private right of ac-
tion allowing displaced persons to sue the condemning authority for relo-
cation costs in a civil action filed directly with the district court. If tenants
are correct, then the district court would have original jurisdiction over that
civil cause of action under K.S.A. 20-301 (District courts have "general
original jurisdiction over all matters, both civil and criminal, unless other-
wise provided by law".).
426 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
A. Standard of Review and Relevant Legal Framework
The tenants argue that K.S.A. 26-518 creates a private right of
action and that the district court has original jurisdiction over that
civil action. But K.S.A. 26-518 does not expressly create a private
right of action. Thus, we must decide whether the Legislature im-
plied such a right. Whether a statute implies a private right of ac-
tion is a question of law subject to unlimited review. Pullen v.
West, 278 Kan. 183, 194, 92 P.3d 584 (2004).
We apply a two-part test to answer this question. "First, the
party must show that the statute was designed to protect a specific
group of people rather than to protect the general public. Second,
the court must review legislative history in order to determine
whether a private right of action was intended." Pullen, 278 Kan.
at 194; see also Nichols v. Kansas Political Action Committee, 270
Kan. 37, 48, 11 P.3d 1134 (2000).
B. K.S.A. 26-518 Does Not Satisfy the Two-Part Test for an
Implied Private Right of Action
Under the first prong of the test, the tenants must show that
K.S.A. 26-518 was designed to protect a specific group of people
rather than the general public. Pullen, 278 Kan. at 194. In its order
granting summary judgment, the district court found that the
EDPA protects the general public, not a specific group. The panel
did not address this ruling specifically. The tenants argue the dis-
trict court erred because the general principles of eminent domain
and the language of the EDPA protects a specific group of peo-
ple—those who have had private property taken for public use.
And K.S.A. 26-518's plain language protects an even narrower
group of people—those displaced by a condemning authority's ac-
quisition of property through negotiations in advance of a con-
demnation action or through a condemnation action when federal
funds are not involved.
The tenants' argument has appeal. But the second part of the
legal test is more relevant and insightful to our analysis. See Kan-
sas State Bank & Tr. Co. v. Specialized Transportation Services,
Inc., 249 Kan. 348, 371, 819 P.2d 587 (1991) (The test for an im-
plied private right of action turns on "whether the legislature in-
tended to give such a right."). Thus, we presume without deciding
VOL. 317 SUPREME COURT OF KANSAS 427
Kansas Fire and Safety Equipment v. City of Topeka
that K.S.A. 26-518 is designed to protect a specific group of peo-
ple and proceed to the second part of the inquiry.
The second part of the test directs us to the relevant statutes
and pertinent legislative history. Pullen, 278 Kan. at 194. The
plain language and structure of K.S.A. 26-518, along with the leg-
islative history, confirm that the Legislature did not intend to cre-
ate a private right of action under K.S.A. 26-518.
1. The Plain Language and Structure of K.S.A. 26-518,
Other EDPA Provisions, and the KRA Undermine Ten-
ants' Argument
We begin our analysis of the second part of the test by review-
ing the plain language and structure of the relevant statute. See
Pullen, 278 Kan. at 194 (quoting Greenlee v. Board of Clay
County Comm'rs, 241 Kan. 802, 804, 740 P.2d 606 [1987]) ("'The
legislative intent to grant or withhold a private cause of action for
a violation of a statute, or the failure to perform a statutory duty,
is determined primarily from the form or language of the stat-
ute.'"). But we do not examine K.S.A. 26-518 in isolation. Instead,
we consider that statute alongside its companion provisions in the
EDPA, along with other KRA provisions addressing the same sub-
ject matter, to achieve a sensible interpretation. See State v. Mora,
315 Kan. 537, 543, 509 P.3d 1201 (2022) (courts must consider
statutes relating to same subject together to achieve sensible re-
sults if possible).
Reading these provisions together, it is apparent the Legisla-
ture intended the KRA's administrative and judicial review pro-
cess to serve as the exclusive remedy when displaced persons
challenge relocation-benefit determinations. And it did not intend
to create a private right of action under K.S.A. 26-518 of the
EDPA.
The EDPA creates an administrative process for determining
just compensation when a condemning authority takes private
property for public use. Estate of Kirkpatrick v. City of Olathe,
289 Kan. 554, 558-59, 215 P.3d 561 (2009); Miller v. Bartle, 283
Kan. 108, 113-14, 150 P.3d 1282 (2007). The condemning author-
ity initiates the process by filing a petition with the district court
in the county where the land is situated. K.S.A. 26-501(b); see also
428 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
K.S.A. 26-504; K.S.A. 26-507. If the district court finds the con-
demning authority has the power of eminent domain and the tak-
ing is necessary to a lawful corporate purpose, the district court
then appoints three appraisers to view and determine the value of
the property. K.S.A. 26-504.
If the condemning authority, or any property owner, is dissat-
isfied with the appraisers' award, they may appeal to the district
court for a trial de novo. K.S.A. 26-508. The only issue that the
district court has jurisdiction to consider in such an appeal is the
"compensation required by K.S.A. 26-513." K.S.A. 26-508(a). In
turn, K.S.A. 26-513 defines that compensation based on the fair
market value of the property or interest at the time of the taking.
As discussed in greater detail in Issue II, such compensation does
not include relocation benefits.
Since 2003, the EDPA has also required condemning author-
ities to provide relocation payments and assistance to displaced
persons when the authority acquires property through condemna-
tion or through negotiations before condemnation, and federal
funds are not involved in the displacing project. K.S.A. 26-518
provides:
"Whenever federal funding is not involved, and real property is acquired by
any condemning authority through negotiation in advance of a condemnation ac-
tion or through a condemnation action, and which acquisition will result in the
displacement of any person, the condemning authority shall:
"(a) Provide the displaced person, as defined in the federal uniform reloca-
tion assistance and real property acquisition policies act of 1970, fair and reason-
able relocation payments and assistance to or for displaced persons.
"(b) Fair and reasonable relocation payments and assistance to or for dis-
placed persons as provided under sections 202, 203 and 204 of the federal uni-
form relocation assistance and real property acquisition policies act of 1970, and
amendments thereto, shall be deemed fair and reasonable relocation payments
and assistance pursuant to this section.
"(c) Nothing in this section shall preclude the voluntary negotiation of fair
and reasonable relocation payments and assistance between the displaced person
and condemning authority. If such negotiations lead to agreement between the
displaced person and the condemning authority, that agreement shall be deemed
fair and reasonable."
The same statutory right to relocation benefits and assistance
is found in the KRA. The purpose of the KRA is to minimize the
injuries and hardships faced by persons displaced by public works
VOL. 317 SUPREME COURT OF KANSAS 429
Kansas Fire and Safety Equipment v. City of Topeka
projects. See K.S.A. 58-3501 (KRA authorizes compliance with
URA); 42 U.S.C. § 4621(b) (2018) (purpose of URA is to "ensure
that [displaced] persons shall not suffer disproportionate injuries
as a result of programs and projects designed for the benefit of the
public as a whole and to minimize the hardship of displacement
on such persons").
Since 2004, the KRA, like the EDPA, has required condemn-
ing authorities to provide relocation payments and assistance to
displaced persons when acquiring property through condemnation
or through negotiations before condemnation, and federal funds
are not involved. K.S.A. 58-3508 provides in relevant part:
"On and after July 1, 2004: (a) Whenever federal funding is not involved,
real property is acquired by any condemning authority through negotiation in
advance of a condemnation action or through a condemnation action and the ac-
quisition will result in the displacement of any person, the condemning authority
shall:
"(1) Provide the displaced person, as defined in the federal uniform reloca-
tion assistance and real property acquisition policies act of 1970, and amend-
ments thereto, fair and reasonable relocation payments and assistance to or for
displaced persons. Relocation payments shall not be required until title to the real
property vests in the condemning authority.
"(2) Fair and reasonable relocation payments and assistance to or for dis-
placed persons as provided under sections 202, 203 and 204 of the federal uni-
form relocation assistance and real property acquisition policies act of 1970, and
amendments thereto, shall be deemed fair and reasonable relocation payments
and assistance pursuant to this section.
"(3) Nothing in this section shall preclude the voluntary negotiation of fair
and reasonable relocation payments and assistance between the displaced person
and condemning authority. If such negotiations lead to agreement between the
displaced person and the condemning authority, that agreement shall be deemed
fair and reasonable."
Since July 2004, the KRA has also provided a review proce-
dure whereby displaced persons can challenge the condemning
authority's relocation-benefit determination. That procedure in-
cludes an administrative review and the right to an appeal to the
district court on the issue of relocation benefits:
"On and after July 1, 2004: (a) Any displaced person entitled to benefits
under this article may appeal by written notice to the state, agency or political
subdivision a determination of relocation payments. If such an appeal is made to
the state, agency or political subdivision within 60 days of the [sic] receiving
notice of the determination being appealed, an independent hearing examiner
430 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
shall be appointed by the state, agency or political subdivision within 10 days
and a determination of the appeal made within 60 days. Any party wishing to
appeal the ruling of the hearing examiner may do so by filing a written notice of
appeal with the clerk of the district court within 30 days of the hearing examiner's
decision. In the event any parties shall perfect an appeal to district court, copies
of such notice of appeal shall be mailed to all parties affected by such appeal
within three days after the date of perfection thereof. Any such appeal to district
court shall be a trial de novo only on the issue of relocation benefits." K.S.A. 58-
3509(a).
In short, both the EDPA and the KRA contain nearly identical
provisions granting displaced persons the right to relocation ben-
efits and assistance. But only the KRA provides a mechanism to
enforce that right. Specifically, the KRA creates an administrative
remedy (appeal to an independent hearing examiner), coupled
with the right to judicial review of the hearing examiner's ruling
in district court.
Construing K.S.A. 26-518 to create an implied private right
of action would be inconsistent with the plain language of K.S.A.
26-508 and K.S.A. 26-513. As discussed more fully in Issue II,
these provisions limit the scope of judicial review in eminent-do-
main appeals to the issue of just compensation for the taking,
which does not include relocation benefits. Recognizing an im-
plied private right of action for relocation benefits under K.S.A.
26-518 would undermine both the administrative remedy and the
limited scope of judicial review the Legislature has created within
the EDPA.
It would also be inconsistent with the plain language of K.S.A.
58-3509(a), which establishes a comprehensive administrative
remedy for vindicating the statutory right to relocation benefits.
Recognizing a private right of action under K.S.A. 26-508 would
permit displaced persons to circumvent the KRA remedy alto-
gether, rendering K.S.A. 58-3509(a) obsolete. In short, the com-
prehensive administrative remedy in the KRA offers compelling
evidence that the Legislature did not intend to create a separate
private right of action under K.S.A. 26-518. See Nichols, 270 Kan.
at 46-53 (concluding Campaign Finance Act did not provide for
implied private right of action because it provided for comprehen-
sive administrative remedy).
VOL. 317 SUPREME COURT OF KANSAS 431
Kansas Fire and Safety Equipment v. City of Topeka
2. The History Confirms that the Legislature Did Not Intend
to Create a Private Right of Action Under K.S.A. 26-518
A review of the relevant history bolsters our conclusion that
the Legislature did not intend to create a private right of action
under K.S.A. 26-518. As originally enacted, the EDPA did not re-
quire condemning authorities to pay relocation benefits to dis-
placed persons. L. 1963, ch. 234. This changed in 2003 with H.B.
2032.
As introduced, H.B. 2032 would have amended the KRA to
require condemning authorities to provide relocation payments
and assistance to displaced persons whether or not federal funds
were involved in the project causing displacement. H.B. 2032, as
introduced (2003); House Journal, p. 55 (January 17, 2003). The
House then amended the bill to create what is now K.S.A. 26-518
and to delete the language limiting the district court's jurisdiction
in eminent-domain appeals under K.S.A. 26-508. H.B. 2032, as
amended by House Committee (2003); House Journal, p. 166
(February 18, 2003); House Journal, p. 179 (February 20, 2003);
House Journal, p. 184-85 (February 21, 2003). In other words, the
House version of the bill would have amended the EDPA (rather
than the KRA) in two respects. First, it would have required con-
demning authorities to pay relocation benefits to displaced per-
sons. Second, it would have effectively expanded the scope of ju-
dicial review in eminent-domain appeals to include all issues
raised in an EDPA proceeding, including relocation benefits.
But H.B. 2032 was later amended by the Senate to reintroduce
the language found in K.S.A. 26-508 that limits the scope of re-
view in eminent-domain appeals to only the issue of just compen-
sation. H.B. 2032, as amended by House Committee, as amended
by Senate Committee (2003); Sen. Journal, p. 300-01 (March 24,
2003). Ultimately, the Senate version of H.B. 2032 was enacted.
Thus, H.B. 2032 amended the EDPA to require condemning au-
thorities to provide relocation payments and assistance in certain
circumstances. But it left unchanged the limited the scope of judi-
cial review in eminent-domain appeals. L. 2003, ch. 106, §§ 2 and
4.
But the Legislature soon recognized that it had created a stat-
utory right to relocation benefits without a remedy to enforce that
432 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
right. So, during the 2004 session, the Legislature considered two
potential solutions: (1) making relocation-benefit determinations
appealable under the EDPA; or (2) providing an administrative
review procedure for relocation-benefit determinations under the
KRA.
The first potential solution was included in H.B. 2800. This
bill would have amended K.S.A. 26-508 to provide district courts
with jurisdiction to hear appeals of relocation-benefit determina-
tions in eminent domain proceedings. See H.B. 2800 (2004) (de-
letions indicated by strikethrough text; additions indicated by ital-
ics text) ("The only issue issues to be determined therein shall be
the compensation required by K.S.A. 26-513, and amendments
thereto, and the adequacy of fair and reasonable relocation pay-
ments and assistance as provided by law."). But H.B. 2800 even-
tually died in committee. House Actions Report and Subject In-
dex, p. 106 (May 27, 2004).
The second potential solution was included in proposed
amendments to S.B. 461. That version of S.B. 461 proposed to
amend the KRA to create an administrative review procedure for
relocation-benefit determinations, followed by judicial review of
that agency action. The amended version of S.B. 461 would later
become K.S.A. 58-3508 (providing for relocation benefits when
no federal funding involved) and K.S.A. 58-3509 (review process
for relocation-benefit determinations). Minutes of the House Judi-
ciary Committee, Attachment 5 (March 8, 2004); House Journal,
p. 1566 (March 25, 2004). S.B. 461 was enacted with these
amendments effective July 1, 2004. L. 2004, ch. 110, §§ 8 and 9.
This history confirms that the Legislature never intended to
create a private right of action for relocation benefits under the
EDPA. Rather, the Legislature considered proposals to make re-
location-benefit determinations appealable to the district court un-
der the EDPA. But those proposals were never enacted. Instead,
the Legislature amended the KRA to provide an administrative
remedy for relocation-benefit determinations, along with the right
to judicial review of that agency action. The Legislature's decision
to enact a comprehensive administrative remedy under the KRA
confirms that it did not intend to create a private right of action for
VOL. 317 SUPREME COURT OF KANSAS 433
Kansas Fire and Safety Equipment v. City of Topeka
relocation benefits under K.S.A. 26-518 of the EDPA. See Alex-
ander v. Sandoval, 532 U.S. 275, 290, 121 S. Ct. 1511, 149 L. Ed.
2d 517 (2001) ("The express provision of one method of enforcing
a substantive rule suggests that Congress intended to preclude oth-
ers."); Osher v. City of St. Louis, Missouri, 903 F.3d 698, 703 (8th
Cir. 2018) (existence of administrative review procedures in URA
"'counsel[s] against . . . finding a congressional intent to create
individually enforceable private rights'") (quoting Gonzaga Univ.
v. Doe, 536 U.S. 273, 290, 122 S. Ct. 2268, 153 L. Ed. 2d 309
[2002]).
The tenants point out that this same history reflects the Legis-
lature's intent to impose a duty on condemning authorities to pro-
vide relocation benefits to displaced persons. We agree that
K.S.A. 26-518 imposes such a duty, as does K.S.A. 58-3508. But
it does not necessarily follow that the Legislature intended the
remedy for a violation of that duty to be a private right of action.
See Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S. Ct.
1946, 60 L. Ed. 2d 560 (1979) ("[T]he fact that a federal statute
has been violated and some person harmed does not automatically
give rise to a private cause of action in favor of that person.").
Rather, the remedy for a failure to provide relocation benefits lies
under the KRA and not the EDPA. See Nichols, 270 Kan. at 52
(statutorily created wrong is to be remedied in the manner pre-
scribed by the Legislature). Thus, contrary to the tenants' asser-
tion, our holding that K.S.A. 26-518 provides no private right of
action does not render that statute meaningless. See Montgomery
v. Saleh, 311 Kan. 649, 655, 466 P.3d 902 (2020) (courts presume
Legislature does not intend to enact meaningless legislation). The
statutory right to relocation benefits under both the EDPA and
KRA can be vindicated through the administrative remedy the
Legislature created in K.S.A. 58-3509(a).
The tenants also contend that K.S.A. 26-518 was enacted to
implement the URA. And failing to recognize a private right of
action under the statute ignores the URA's purpose, which is to
ensure displaced persons are compensated. See 42 U.S.C. §
4621(b) (2020). But again, we are not suggesting that K.S.A. 26-
518 imposes no duty on condemning authorities to provide relo-
cation payments and assistance. Rather, we hold that the remedy
434 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
for a failure to fulfill that duty is the review process under K.S.A.
58-3509(a), not a private right of action. Thus, our holding is con-
sistent with the URA and its purpose.
Finally, the tenants note that both our court and the Court of
Appeals issued decisions on the merits in the previous appeal.
They reason that such decisions could not have been entered with-
out an implicit finding that jurisdiction was proper. Thus, in grant-
ing summary judgment to the City on remand, the tenants believe
the district court made an unsupported finding of fact that the ap-
pellate courts overlooked the issue of jurisdiction in the prior ap-
peal, and the panel erroneously adopted that unsupported finding.
But the tenants' argument is a red herring. For one, whether
jurisdiction exists is a question of law. Barnes v. Board of Cowley
County Comm'rs, 293 Kan. 11, 16, 259 P.3d 725 (2011). And no
fact-findings were required to determine whether the district court
had subject matter jurisdiction in this case. Further, "'[o]ne of the
first and continuing duties of a court is to determine whether it has
jurisdiction of the subject matter of the action.'" Harshberger v.
Board of County Commissioners, 201 Kan. 592, 594, 442 P.2d 5
(1968). Thus, once the City raised the issue of subject matter ju-
risdiction on remand, it was incumbent upon the district court to
address it. Neither the parties' failure to raise the issue earlier nor
the absence of an explicit ruling on the issue in the previous appeal
can create subject matter jurisdiction. See Kingsley v. Kansas
Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009)
("[P]arties cannot convey subject matter jurisdiction on a court by
failing to object to the court's lack of jurisdiction. If the district
court lacks jurisdiction to make a ruling, an appellate court does
not acquire jurisdiction over the subject matter on appeal. [Cita-
tions omitted.]").
In sum, there is no private right of action under K.S.A. 26-
518. Even presuming that the statute protects a specific group of
people, the relevant statutory provisions and legislative history
confirm that the Legislature did not intend to create a private right
of action to recover relocation costs under K.S.A. 26-518. Instead,
the Legislature intended K.S.A. 58-3509(a) to provide a single,
comprehensive administrative remedy to vindicate the statutory
VOL. 317 SUPREME COURT OF KANSAS 435
Kansas Fire and Safety Equipment v. City of Topeka
right to relocation benefits and assistance. Because there is no pri-
vate right of action under K.S.A. 26-518, the district court did not
have original civil jurisdiction over the tenants' cause of action.
See K.S.A. 20-301.
II. The EDPA Provides No Right to Judicial Review of Reloca-
tion-Benefit Determinations
Having concluded that the EDPA provides no private right of
action to recover relocation benefits under K.S.A. 26-518, we next
consider whether the EDPA provides a right to judicial review of
relocation-benefit determinations in eminent-domain appeals. If
so, the district court would arguably have appellate jurisdiction to
review the City's denial of relocation benefits. See K.S.A. 20-301
(district courts have "such appellate jurisdiction as prescribed by
law"). But as suggested in the analysis of Issue I, the EDPA limits
judicial review to the question of just compensation only, which
does not include relocation benefits.
A. Standard of Review and Relevant Legal Framework
We continue to employ an unlimited standard of review when
determining the existence of subject matter jurisdiction. In Equal-
ization Appeal of Target Corp., 311 Kan. 772, 775, 466 P.3d 1189
(2020).
Also, eminent domain proceedings under the EDPA are ad-
ministrative in nature. Bartle, 283 Kan. at 113-14. Courts have
appellate jurisdiction to review administrative actions only if the
Legislature has enacted statutes providing for such review:
"Courts have no inherent appellate jurisdiction over official acts of admin-
istrative officials or boards, unless there is a statute providing for judicial review.
Absent such a statutory provision, appellate review of administrative decisions
is limited to claims of relief from illegal, fraudulent, or oppressive official con-
duct through the equitable remedies of quo warranto, mandamus, or injunction.
The right to appeal an administrative decision is not vested or constitutional; it
is statutory and may be limited or completely abolished by the legislature. [Cita-
tion omitted.]" Barnes, 293 Kan. at 17.
In short, the second theory of jurisdiction turns on whether the
EDPA authorizes the district court to review relocation-benefit de-
terminations in eminent-domain appeals. We employ unlimited
review when interpreting the relevant statutory provisions of the
436 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
EDPA. State v. Smith, 311 Kan. 109, 111, 456 P.3d 1004 (2020)
(applying a de novo review to a statutory interpretation question).
B. The EDPA's Plain Language Limits the Scope of Ju-
dicial Review to the Exclusion of Relocation-Benefit
Determinations
In determining whether the EDPA provides for judicial re-
view of relocation-benefit determinations under K.S.A. 26-518,
we first look to the plain language of the relevant statutory provi-
sions. See Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007
(2022) (when interpreting statutes, courts begin with statute's
plain language, and may consider statutes in pari materia even
when language is unambiguous).
K.S.A. 26-508 specifically limits eminent-domain appeals to
the issue of just compensation. The statute provides that the plain-
tiff or any defendant may appeal the appraisers' award to the dis-
trict court, but "[t]he only issue to be determined [in an eminent-
domain appeal] shall be the compensation required by K.S.A. 26-
513, and amendments thereto." K.S.A. 26-508(a).
Relocation benefits are not part of the "compensation required
by K.S.A. 26-513, and amendments thereto." K.S.A. 26-508(a).
Instead, K.S.A. 26-513(b) provides that "the measure of compen-
sation is the fair market value of the property or interest at the time
of the taking." And, if only a part of the property or interest is
taken, just compensation is based on the "difference between the
fair market value of the entire property or interest immediately
before the taking, and the value of that portion of the tract or in-
terest remaining immediately after the taking." K.S.A. 26-513(c).
The statute defines fair market value as "the amount in terms of
money that a well informed buyer is justified in paying and a well
informed seller is justified in accepting for property in an open
and competitive market, assuming that the parties are acting with-
out undue compulsion." K.S.A. 26-513(e). Relocation benefits fall
outside the statutory meaning of "fair market value" under K.S.A.
26-513(e). Nor are relocation benefits listed as a factor in deter-
mining compensation and damages under K.S.A. 26-513(d).
Based on this plain language, we have held that district courts
lack subject matter jurisdiction to review any issue other than just
VOL. 317 SUPREME COURT OF KANSAS 437
Kansas Fire and Safety Equipment v. City of Topeka
compensation (defined as the fair market value of a taking) in an emi-
nent-domain appeal. See, e.g., Miller v. Glacier Development Co., 293
Kan. 665, 672, 270 P.3d 1065 (2011) (district court lacked jurisdiction
in eminent-domain appeal to determine whether LLC's member or
manager could be held personally liable to reimburse condemning au-
thority for excess payment to LLC); Bartle, 283 Kan. at 115-117 (com-
pensation beyond fair market value not justiciable in eminent-domain
appeal); Nat'l Compressed Steel Corp. v. Unified Gov't of Wyandotte
County/Kansas City, 272 Kan. 1239, 1245, 39 P.3d 723 (2002) (no
right to litigate outside issues—such as right to exercise the power of
eminent domain and the necessity and the extent of the taking—in em-
inent-domain proceeding).
The plain language of K.S.A. 26-508(a) limits the district
court's jurisdiction in eminent-domain appeals to "the compensa-
tion required by K.S.A. 26-513." And K.S.A. 26-513 makes clear
that relocation benefits are not a component of, nor a factor to be
considered in calculating, the compensation required for the tak-
ing. Thus, relocation-benefit determinations are not subject to ju-
dicial review under K.S.A. 26-508(a). And the EDPA did not pro-
vide the district court with jurisdiction over the tenants' claims.
C. Legislative History Also Supports This Plain-Lan-
guage Interpretation
Because this issue can be resolved on the EDPA's plain lan-
guage alone, we need not look to legislative history to determine
intent. See Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156, 159,
473 P.3d 869 (2020) (if Legislature's intent unclear from statutory
language, court may look to legislative history, background con-
siderations, and canons of construction to determine legislative in-
tent). That said, we note that the legislative history bolsters our
plain-language interpretation.
At one point during the 2003 legislative session, H.B. 2032
(the bill that enacted K.S.A. 26-518) was amended to remove the
language limiting the scope of judicial review in eminent-domain
appeals under K.S.A. 26-508. But that limiting language was later
reintroduced and incorporated into H.B. 2032 before it was en-
acted.
438 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
The next year, H.B. 2800 was introduced, and that bill would
have amended K.S.A. 26-508 to expand the scope of judicial re-
view in eminent-domain appeals to include relocation-benefit de-
terminations specifically. But H.B. 2800 died in committee, leav-
ing intact K.S.A. 26-508's limits on judicial review.
In sum, the plain language of K.S.A. 26-508 and K.S.A. 26-
513 limits the district court's review in eminent-domain appeals to
the question of just compensation only, which does not include
relocation benefits. The legislative history supports our plain-lan-
guage interpretation. Thus, the EDPA provides no basis for the
district court to exercise jurisdiction over the tenants' claims.
III. The KRA Creates a Right to Judicial Review of a Hearing
Examiner's Ruling on Relocation Benefits, but Tenants
Failed to Pursue and Exhaust This Remedy, Foreclosing Dis-
trict Court Review
We next consider whether the KRA vested the district court
with subject matter jurisdiction over the tenants' relocation bene-
fits claims. Again, we exercise unlimited review when interpreting
statutes and deciding whether subject matter jurisdiction exists.
Barnes, 293 Kan. at 16.
As noted, the EDPA does not provide for judicial review of
relocation-benefit determinations. But the KRA provides an ad-
ministrative remedy, with subsequent judicial review of that
agency action, to enforce the statutory right to relocation benefits
found in both the EDPA and KRA. But the tenants' failure to pur-
sue that remedy at all, let alone in a timely manner, deprived the
district court of jurisdiction under the KRA.
K.S.A. 58-3509(a) allows a displaced person to appeal to the
state, agency, or political subdivision within 60 days of the initial
determination of relocation benefits. If such an appeal is made,
"an independent hearing examiner shall be appointed by [the con-
demning authority] within 10 days and a determination of the ap-
peal made within 60 days." K.S.A. 58-3509(a). After administra-
tive review is complete, "[a]ny party wishing to appeal the ruling
of the hearing examiner may do so by filing a written notice of
appeal with the clerk of the district court within 30 days of the
hearing examiner's decision." K.S.A. 58-3509(a). And "[a]ny such
VOL. 317 SUPREME COURT OF KANSAS 439
Kansas Fire and Safety Equipment v. City of Topeka
appeal to district court shall be a trial de novo only on the issue of
relocation benefits." K.S.A. 58-3509(a).
Here, the tenants did not pursue this remedy. The City denied
the tenants' request for relocation benefits on October 31, 2013.
Under the KRA, the tenants had 60 days, roughly through the end
of 2013, to pursue an administrative appeal of the City's reloca-
tion-benefits determination. The tenants never initiated an admin-
istrative appeal. See State ex rel. Slusher v. City of Leavenworth,
285 Kan. 438, 453, 172 P.3d 1154 (2007) (party ordinarily must
exhaust any administrative remedy provided by statute before that
party may bring the matter before a court).
The failure to pursue the KRA's administrative remedy de-
prives the district court of subject matter jurisdiction over the pe-
tition. K.S.A. 58-3509(a) allows any party to seek review in the
district court of the hearing examiner's ruling on the issue of relo-
cation benefits. But without a ruling by the hearing examiner,
there is no basis for district court review. In other words, exhaus-
tion of the administrative appeal process in K.S.A. 58-3509(a) is
a jurisdictional prerequisite to judicial review in the district court.
Cf. Kingsley, 288 Kan. at 410 (exhaustion requirement of K.S.A.
77-612 is a jurisdictional prerequisite to the entire petition for ju-
dicial review).
This legal conclusion is consistent with our precedent interpreting
K.S.A. 58-3509. We have held that in conducting judicial review of
relocation benefits under K.S.A. 58-3509(a), the district court must
make "independent findings of fact and conclusions of law regarding
the question of relocation benefits based upon the record of proceed-
ings before the administrative hearing examiner." (Emphasis added.)
Frick v. City of Salina, 289 Kan. 1, 24, 208 P.3d 739 (2009). When a
displaced person fails to exercise the administrative remedy under the
KRA, there is no record of the administrative proceeding upon which
the district court can make those findings and conclusions. Thus,
where, as here, petitioners do "not exhaust all available and adequate
administrative remedies before filing a petition for judicial review of
an agency action, then the district court lacks subject matter jurisdiction
to consider the contents of the petition." Kingsley, 288 Kan. at 408-09.
The tenants attempted to circumvent the KRA remedy altogether
by filing a civil action directly in district court to recover relocation
440 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
benefits. The tenants assert that Kansas courts have held that a private
right of action and subject matter jurisdiction exists under the KRA.
But no Kansas court has expressly held that K.S.A. 58-3508 creates a
private right of action to recover relocation benefits.
The tenants cite an unpublished Court of Appeals opinion, Stal-
naker v. Cowley County Community College, No. 112,659, 2016 WL
1391631 (Kan. App. 2016) (unpublished opinion), to support their
proposition. But Stalnaker involved a different issue—whether a dis-
placed person had produced records demonstrating they were entitled
to relocation benefits under K.S.A. 58-3508. The panel in Stalnaker
never addressed whether K.S.A. 58-3508 creates a private right of ac-
tion for relocation benefits. And while the decision states that the plain-
tiff "filed this lawsuit for relocation payments," the decision also refers
to both "the hearing on this matter" and a trial. 2016 WL 1391631, at
*1. Thus, it is unclear whether the plaintiff sued directly in district court
or followed the review process in K.S.A. 58-3509(a).
Perhaps more important, construing K.S.A. 58-3508 to create a
private right of action would undermine the comprehensive adminis-
trative remedy the Legislature created in K.S.A. 58-3509. Recognizing
such a private right of action would allow displaced persons to circum-
vent that administrative remedy altogether. And, as we established in
Issues I and II, the Legislature intended K.S.A. 58-3509(a) to serve as
the single, comprehensive remedy for redressing violations of the stat-
utory right to relocation benefits under both the EDPA and KRA.
In sum, the KRA grants district courts subject matter jurisdiction
to review a hearing examiner's ruling on the issue of relocation bene-
fits. But a petitioner must first exhaust the administrative appeal and
then timely seek review of the examiner's decision to invoke that juris-
diction. The tenants failed to exhaust their KRA administrative reme-
dies, depriving the district court of subject matter jurisdiction over their
claims.
IV. A Relocation-Benefit Determination Is Not Appealable Under
K.S.A. 60-2101(d)
Finally, we examine whether the district court had jurisdiction
over the tenants' petition under K.S.A. 60-2101(d). That statute gener-
ally authorizes the district court to review final judgments and orders
VOL. 317 SUPREME COURT OF KANSAS 441
Kansas Fire and Safety Equipment v. City of Topeka
of a political or taxing subdivision when it exercises judicial and quasi-
judicial functions:
"A judgment rendered or final order made by a political or taxing subdivi-
sion, or any agency thereof, exercising judicial or quasi-judicial functions may
be reversed, vacated or modified by the district court on appeal. If no other means
for perfecting such appeal is provided by law, it shall be sufficient for an ag-
grieved party to file a notice that such party is appealing from such judgment or
order with such subdivision or agency within 30 days of its entry, and then caus-
ing true copies of all pertinent proceedings before such subdivision or agency to
be prepared and filed with the clerk of the district court in the county in which
such judgment or order was entered." K.S.A. 60-2101(d).
The City is a political subdivision. But even assuming the City was
exercising a judicial or quasi-judicial function when it denied the ten-
ants' request for relocation costs, K.S.A. 60-2101(d) does not apply.
The statute's plain language confirms it is intended to be a default ju-
risdictional statute because it applies "[i]f no other means for perfecting
such appeal is provided by law." K.S.A. 60-2101(d). But the KRA pro-
vides other means for perfecting an appeal of a relocation-benefit de-
termination. See K.S.A. 58-3509(a). And K.S.A. 58-3509 would also
control as the statute more specific to judicial review of relocation-ben-
efit determinations. See State ex rel. Schmidt v. Governor Kelly, 309
Kan. 887, 898, 441 P.3d 67 (2019) ("'A specific statute controls over a
general statute.'").
Having reviewed and rejected all viable theories of jurisdiction, we
conclude that the district court lacked subject matter jurisdiction in this
action. This conclusion likewise deprives the appellate courts of juris-
diction over the subject matter of the tenants' claims. See In re Care &
Treatment of Emerson, 306 Kan. 30, 39, 392 P.3d 82 (2017) (if trial
court lacks jurisdiction, appellate court does not acquire jurisdiction on
appeal).
And because we lack jurisdiction over the matter, we do not reach
the City's conditional cross-petition addressing the merits of the district
court's advisory summary judgment ruling. See In re of Estate of Lentz,
312 Kan. 490, 504, 476 P.3d 1151 (2020) (a court that dismisses for
lack of jurisdiction should not opine on the merits).
CONCLUSION
We hold that neither the district court nor the appellate courts have
subject matter jurisdiction over the tenants' claims. The EDPA does not
442 SUPREME COURT OF KANSAS VOL. 317
Kansas Fire and Safety Equipment v. City of Topeka
create an implied private right of action over which the district court
has original jurisdiction. Nor does the EDPA separately provide a right
to judicial review of relocation-benefit determinations in eminent-do-
main appeals. While the KRA provides a right to judicial review of
relocation-benefit determinations, the tenants did not exhaust their ad-
ministrative remedies under K.S.A. 58-3509(a), depriving the district
court of subject matter jurisdiction. And while K.S.A. 60-2101(d) au-
thorizes appeals to the district court from certain final judgments and
orders of a political subdivision, this statute does not apply because the
KRA provides a more specific procedure for judicial review.
We thus affirm the Court of Appeals judgment. Because the City
did not challenge the panel's holding regarding the proper disposition
of this case, see Kansas Fire and Safety Equipment, 62 Kan. App. 2d
at 352-53, we reverse the district court's order granting summary judg-
ment and remand to the district court to enter an order dismissing the
case without prejudice.
On a final note, because we hold that the district court lacked sub-
ject matter jurisdiction over the tenants' petition, the decisions issued in
the prior appeal of this case—Nauheim v. City of Topeka, 309 Kan. 145
and Nauheim v. City of Topeka, 52 Kan. App. 2d 969—were also en-
tered without subject matter jurisdiction. We thus vacate those deci-
sions, and they are no longer of any precedential value.
Judgment of the Court of Appeals reversing and remanding to the
district court is affirmed. Judgment of the district court is reversed, and
the case is remanded with directions.
VOL. 317 SUPREME COURT OF KANSAS 443
State v. Buchanan
No. 123,100
STATE OF KANSAS, Appellee, v. RONALD LEVON BUCHANAN,
Appellant.
___
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Aggravated Arson Charge—No Double Jeopardy Vi-
olation When Convicted on Multiple Counts. A defendant charged with ag-
gravated arson committed under K.S.A. 2022 Supp. 21-5812(b)(1)—that is,
arson committed upon a property in which there is a person—does not suffer
a double jeopardy violation when convicted on multiple counts arising from
damage by fire to separate apartments, each with a person inside.
2. SAME—Sufficiency of Evidence Challenge—Appellate Review. When the
sufficiency of the evidence is challenged in a criminal case, appellate courts
review the evidence in a light most favorable to the State to determine
whether a rational fact-finder could have found the defendant guilty beyond
a reasonable doubt. Appellate courts do not reweigh evidence, resolve evi-
dentiary conflicts, or weigh in on witness credibility.
3. SAME—Untimely Motion for New Trial—May Be Summarily Denied if De-
termined that Movant Not Entitled to Relief. A district court judge may sum-
marily deny an untimely motion for new trial based on dissatisfaction with
counsel without appointing counsel if the judge determines from the mo-
tion, files, and records that the movant is not entitled to relief.
Review of the judgment of the Court of Appeals in an unpublished opinion
filed August 26, 2022. Appeal from Johnson District Court;
JAMES CHARLES
DROEGE, judge. Oral argument held March 28, 2023. Opinion filed June 30,
2023. Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
Emily Brandt, of Kansas Appellant Defender Office, argued the cause, and
Jennifer C. Bates, of the same office, was on the briefs for appellant, and Ronald
Buchanan, appellant, was on a supplemental brief pro se.
Jacob M. Gontesky, assistant district attorney, argued the cause, and Ste-
phen M. Howe, district attorney, and Derek Schmidt, attorney general, were with
him on the briefs for appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: The State charged Ronald Levon Buchanan
with several crimes after an intentionally set fire damaged several
444 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
apartments. A jury convicted Buchanan of six counts of aggra-
vated arson, three counts of attempted first-degree murder, and
one count of animal cruelty. He appeals, raising three issues.
He first argues the district court judge violated his right to be
free from double jeopardy by sentencing him to six counts of ag-
gravated arson when the evidence proved the arsonist started only
one fire. The State argues the single act of igniting a fire does not
determine the allowable unit of prosecution for aggravated arson.
Rather, the Kansas Legislature has defined the unit of prosecution
for aggravated arson as each damaged building or property in
which there is a person. Under the circumstances of this case, we
agree with the State's argument.
Buchanan also argues the State failed to present sufficient evi-
dence that he intended to kill and thus his convictions for attempted
first-degree murder must be reversed. Contrary to his argument, the
State presented evidence sufficient to convince a rational fact-finder
beyond a reasonable doubt that he intended to murder his daughter, her
mother, and her brother when he ignited a fire outside their apartment
door.
Finally, Buchanan argues the judge erred by failing to investigate
his untimely posttrial allegation that he was denied his right to conflict-
free counsel. A district court judge may summarily deny an untimely
motion for new trial if the judge determines from the motion, files, and
records that the movant is not entitled to relief. Here, Buchanan did not
establish a basis for relief, and the judge did not err in denying the mo-
tion.
We thus affirm Buchanan's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
The State told the jury that Buchanan's criminal acts were moti-
vated by arguments between him and his daughter, Maraya, that cli-
maxed the day Maraya graduated from high school. Several days be-
fore her graduation, Maraya told Buchanan not to come to her gradua-
tion. He came anyway. Although, according to Buchanan, Maraya
"didn't lash out" and "no one got into it or anything," he perceived
Maraya's conduct toward him at the graduation to be disrespectful, and
he felt hurt.
VOL. 317 SUPREME COURT OF KANSAS 445
State v. Buchanan
After the ceremony, Maraya returned to the Overland Park apart-
ment she shared with her brother, her mother, and their dog. Buchanan
had moved out of the apartment months earlier and was living in Kan-
sas City, Missouri.
The night of Maraya's graduation, Buchanan made a public post
on Facebook in which he complained about Maraya's treatment of him.
A neighbor in Maraya's apartment complex saw the Facebook post and
called him to ask about it. During the conversation,
Buchanan asked the neighbor to go to his old apartment and get
his belongings. The neighbor agreed to do so but did not immediately
act on the promise because of the late hour.
Maraya and Buchanan also communicated, and Buchanan de-
manded Maraya return a key to his house. She agreed to leave it under
the apartment's doormat. When Maraya's mother heard of the arrange-
ment, she moved her car. She wanted to avoid a confrontation with
Buchanan and hoped he would think she was not home.
About two hours later, around 4 a.m., Maraya and her family woke
to a fire alarm. When they opened the front door of the family's second-
floor apartment, fire engulfed the stairs, cutting off the family's ability
to exit the apartment through the door. The mother tied bedding to-
gether in Maraya's room and used it to lower her children through a
window and to the ground; she then climbed out herself.
When firefighters arrived, they found a "heavy fire" that engulfed
the first and second floors. The fire lapped above the structure, invaded
the attic, and spread across the building. The firefighters found resi-
dents outside who reported being awakened by fire alarms. These res-
idents told the firefighters others were still inside, and the firefighters
went into rescue mode. Ten fire companies responded to the two-alarm
fire. Firefighters had to back out of the building when an exterior wall
began collapsing around them. Residents of six apartments other than
Maraya's testified at trial about the fire, being awakened by alarms,
fleeing from their apartments, and the damage to their property.
Maraya's dog, Dash, died in the fire.
Maraya immediately suspected Buchanan of starting the fire and
told him as much in a text message. Maraya and her mother told law
enforcement they suspected Buchanan.
In the early morning hours after the fire, Buchanan sent a Fa-
cebook message to one of Maraya's friends he had never messaged
446 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
before. In the message, he complained about Maraya's disrespect-
ful conduct at the graduation ceremony, he denied setting the fire,
and he added that he did not care about her losses. In a public
Facebook message, he repeatedly called Maraya and her mother
"them bitches," suggested he would urinate in the spare rooms of
his house before allowing them to use them, and made other de-
rogatory remarks directed toward them. He added that "they Got
what God sent to em. Damn I wish they [sic] house didn't burn
down but I'll be a lie [sic] if I said I cared."
Investigators determined the fire started in the stairwell in
front of Maraya's apartment, and they eliminated accidental or nat-
ural causes. A dog trained to detect accelerants alerted on a glass
bottle with liquid inside. Testing identified the bottle's contents as
acetone, a flammable liquid. Investigators swabbed the bottle for
DNA. Testing determined that Buchanan was 394 million times
more likely to contribute the DNA found on the bottle's outside
than an unknown source, and 88.1 trillion times more likely to
contribute the DNA found on the bottle's mouth than an unknown
source.
Investigators interviewed Buchanan, who denied involvement
and told police he was at the hospital around the time of the fire.
But detectives found no medical records verifying that claim.
Investigators did obtain Buchanan's cell phone records, which
showed his phone was in Kansas City, Missouri, in the hours be-
fore the fire. But, around 3:30 a.m., the phone moved from Mis-
souri into Kansas near cell towers around the family's apartment.
About 25 minutes later, it moved back into Missouri. Around the
same time, traffic camera footage showed a Pontiac G6, like one
owned by Buchanan, traveling into and out of Maraya's neighbor-
hood. This timing coincided closely with the first reports about the
fire.
The State charged Buchanan with several crimes, and the dis-
trict court judge appointed an attorney to represent Buchanan.
Within weeks, Buchanan moved for a new attorney. The judge
held a hearing and appointed a second attorney after finding that
Buchanan's relationship with the first attorney had become
strained and the two were no longer communicating effectively.
VOL. 317 SUPREME COURT OF KANSAS 447
State v. Buchanan
Despite having a new attorney, Buchanan kept filing motions
himself. He also filed a disciplinary complaint against his newly
appointed attorney, claiming the attorney had not communicated
during jail visits. Because this created a conflict between Bu-
chanan and his counsel, the judge allowed counsel to withdraw.
The judge then appointed a third attorney and ordered a compe-
tency evaluation.
Buchanan was found competent, and the judge set dates for
the trial and for a scheduling conference. At the conference, Bu-
chanan's attorney asked for time to get a report from a fire recon-
struction expert. The judge continued the trial to a new date.
As the trial date approached, the judge conducted a pretrial
conference. Buchanan told the judge he was not ready for trial be-
cause his attorney did not have experts to rebut the State's evi-
dence about the fire, phone records, or DNA. He told the judge
that unless his attorney had "some type of Hail Mary he's going to
throw up that he hasn't made me aware of, we're nowhere ready
for trial."
Speaking about the fire expert, Buchanan complained that his
attorney was "telling me the building has been destroyed. There is
no way a fire expert can test the building or anything to prove an
arson took place." Buchanan's attorney explained the building had
been torn down before he became Buchanan's attorney. He had
consulted an expert who had explained "they can't look at a scene
that doesn't exist and determine if it was or was not an arson."
Addressing Buchanan's request for his own DNA expert, the
defense attorney explained there had been two DNA examina-
tions, both of which confirmed a high likelihood that Buchanan's
DNA was on the bottle found at the scene. He reported that Bu-
chanan did not trust the State's expert. But he also told the judge
that Buchanan was not arguing the DNA results were incorrect.
Instead, he would explain the reason he had used the bottle. Bu-
chanan would later tell the jury he had painted various things at
the apartment complex, and he stored nail polish remover in the
bottle and used it when cleaning up paint. Buchanan's attorney ex-
plained he was not pursuing a DNA expert as a matter of strategy
and would instead rely on Buchanan's innocent explanation.
448 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
Finally, discussing Buchanan's complaint about not having a
phone technology expert, Buchanan's attorney told the judge he
understood the phone records and did not need an expert to inter-
pret them. He also reported having told Buchanan that "[y]ou can't
be sleeping at home in Missouri and have a cell tower in southern
Johnson County pick your phone up randomly."
The judge addressed Buchanan and explained that criminal de-
fense attorneys make most trial strategy decisions. Buchanan again ex-
plained his concerns, including his view that his attorney had not ade-
quately investigated the case or checked out his alibi. Following this
discussion, the judge asked if the defense was ready for trial, and Bu-
chanan's attorney replied he was ready. The judge gave Buchanan and
his attorney time to visit privately. After a recess, Buchanan's attorney
told the judge he had again explained why he was not hiring the various
experts. The judge asked if they had talked about whether Buchanan
wanted a new attorney. Buchanan replied by saying, "I apologize to the
Court and my counsel. I was a little frustrated and . . . I kind of reacted
over that."
The trial proceeded as scheduled. Buchanan testified and denied
setting the fire. He said there had been "a little tension" at Maraya's
graduation, and after the ceremony he had called Maraya's mother and
had texted Maraya. A little after 2 a.m., he had texted Maraya and let
her know he was going to the hospital and would not pick up his key.
Buchanan also told the jury he had experienced stomach pains in
the hours before the fire. He had asked his neighbor for a ride to the
hospital, but his neighbor had been drinking and could not drive. Oth-
ers at his neighbor's house, who were visiting from out of town,
dropped him off at the hospital around 2 a.m. Buchanan then realized
he did not have his phone and must have left it in the car when he went
into the emergency room. He immediately called his neighbor, who
started calling Buchanan's phone to alert the driver Buchanan needed
his phone. When the driver did not return, Buchanan called another
friend who picked him up even though he had not received any medical
attention. Buchanan told the jury he did not get his phone back until
about 5 a.m. He could not explain why his phone could be tracked in
Johnson County, and he denied the video showed his car.
The jury convicted Buchanan for attempted first-degree murder of
Maraya, her mother, and her brother; for cruelty to animals; and for six
VOL. 317 SUPREME COURT OF KANSAS 449
State v. Buchanan
counts of aggravated arson (one for each apartment other than the one
occupied by Maraya's family).
Before sentencing, Buchanan filed an untimely motion for a new
trial. He repeated the complaints he had raised at the pretrial confer-
ence—counsel had failed to procure fire and phone technology experts,
conduct independent DNA testing, and adequately investigate the case.
He also raised trial issues. The next day, Buchanan's counsel also filed
a motion for new trial, simply citing K.S.A. 22-3501. The judge dis-
cussed the motions before sentencing but declined to consider Buchan-
an's own motions because counsel represented him. The judge then
summarily held there was no basis for a new trial.
Buchanan appealed through counsel; he also raised additional is-
sues in his own filings. The Court of Appeals affirmed. State v. Bu-
chanan, No. 123,100, 2022 WL 3694882 (Kan. App. 2022) (un-
published opinion).
Buchanan, through counsel, then petitioned seeking this court's re-
view of the Court of Appeals decision. We granted Buchanan's petition
and have jurisdiction. State v. Buchanan, rev. granted 316 Kan. 759
(2022). See K.S.A. 20-3018(b) (providing for jurisdiction over peti-
tions for review of Court of Appeals decisions); K.S.A. 60-2101(b)
(Supreme Court has jurisdiction to review Court of Appeals decisions
upon petition for review).
Buchanan's petition did not include all issues Buchanan had raised
before the Court of Appeals, and the State did not file a cross-petition
for review on points the Court of Appeals decided against it. Both Bu-
chanan and the State have waived any issue not preserved through a
petition or cross-petition for review. See State v. Valdiviezo-Martinez,
313 Kan. 614, 624, 486 P.3d 1256 (2021).
ANALYSIS
We turn to the three issues preserved for our consideration.
(1) Do the six counts of arson subject Buchanan to double jeopardy?
(2) Did the State present sufficient evidence that he intended to murder Maraya,
her mother, and her brother? and,
(3) Did the judge err in denying Buchanan's motions for new trial?
450 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
ISSUE 1: DOUBLE JEOPARDY CLAUSE NOT VIOLATED
We begin with Buchanan's double jeopardy argument, in which he
complains about being convicted and sentenced for six counts of ag-
gravated arson—one for each damaged apartment unit other than
Maraya's residence. His argument is rooted in the Double Jeopardy
Clause of the Sixth Amendment to the United States Constitution and
section 10 of the Kansas Constitution Bill of Rights. Double Jeopardy
Clause violations can occur in many ways, including when a court im-
poses multiple punishments for the same offense. State v. Schoonover,
281 Kan. 453, 463-64, 133 P.3d 48 (2006). Buchanan asserts this type
of double jeopardy argument as he argues his six convictions and re-
sulting sentences for aggravated arson punish him multiple times for
setting one fire.
When considering this type of multiplicity argument, courts apply
a two-part test and determine whether a jury convicted a defendant for
multiple counts charging the same offense: (1) Do the convictions
arise from the same conduct? and, (2) By statutory definition are there
two offenses or only one? 281 Kan. at 496.
In discussing the first step, the parties agree that the arsonist set
only one fire. In other words, the damage to all the apartments arose
from the same conduct. Agreement on this question means we need
not discuss the test's first component. But "[t]he determination of the
appropriate unit of prosecution is not necessarily dependent upon
whether there is a single physical action or a single victim. Rather, the
key is the nature of the conduct proscribed." 281 Kan. at 472.
In determining the proscribed conduct, our sole focus is the of-
fense's statutory definition. Here, only one offense is at issue—aggra-
vated arson. That means the convictions are based on a single statute.
In looking at multiple convictions under a single statute, courts apply
the unit of prosecution test that focuses on how the Legislature defined
the scope of conduct composing a statutory violation. That definition
determines the allowable unit of prosecution, and there can be only one
conviction for each unit of prosecution. 281 Kan. at 497-98. As the
Court of Appeals noted, defining the unit of prosecution for aggravated
arson presents a question of first impression under Kansas law. Bu-
chanan, 2022 WL 3694882, *6; see State v. Coble, 312 Kan. 615, 629,
479 P.3d 201 (2021) (declining to weigh in on potential double
jeopardy issues upon remand of arson case).
VOL. 317 SUPREME COURT OF KANSAS 451
State v. Buchanan
The Kansas Legislature defined multiple ways to commit ar-
son and aggravated arson in K.S.A. 2022 Supp. 21-5812. Only one
way is involved here because the six counts of aggravated arson
that resulted in Buchanan's convictions were charged with identi-
cal language, except for identifying six apartments by a four-digit
number. For example, one aggravated arson count charged Bu-
chanan with having "unlawfully, knowingly, and feloniously, by
means of fire or explosive, damage[d] any building or property, to
wit: Spring Hill Apartment 2202, in which there was a human
being, which resulted in a substantial risk of bodily harm."
While the complaint referred to damage by "means of fire or
explosive" to "any building or property," the jury instruction nar-
rowed the jury's consideration to "fire" and "a property," telling
the jury it needed to find:
"1. The defendant committed arson by knowingly, by means of fire, dam-
aging a property specifically apartment 2202.
"2. At the time there was a human being in the property.
"3. The fire resulted in a substantial risk of bodily harm."
The same jury instruction was given for each aggravated arson
count on which the jury returned a guilty verdict, although the
apartment number changed.
These elements reflect the language in K.S.A. 2022 Supp. 21-
5812 that defines aggravated arson. More specifically, the lan-
guage in the complaint and in paragraph 2 of the instruction cor-
responds with the aggravated arson definition in K.S.A. 2022
Supp. 21-5812(b), which states: "(b) Aggravated arson is arson,
as defined in subsection (a): (1) Committed upon a building or
property in which there is a human being." Paragraph 1 of the in-
struction and corresponding language in the complaint echo the
following italicized words found in K.S.A. 2022 Supp. 21-
5812(a), which states: "Arson is: (1) Knowingly, by means of fire
or explosive damaging any building or property which . . . ." And
paragraph 3 of the instruction, and corresponding language in the
complaint, uses statutory language from K.S.A. 2022 Supp. 21-
5812(c)(2), which defines an aggravating sentencing factor that
applies "if such crime results in a substantial risk of bodily harm."
Buchanan makes no instructional error claim. We thus focus on
452 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
the language in the instruction—the language on which the jury
based its verdict.
That language was narrow and did not include many of the
words and phrases discussed by the parties and the Court of Ap-
peals, such as "building," "dwelling," and "any." See, e.g., Bu-
chanan, 2022 WL 3694882, at * 5 (discussing K.S.A. 2022 Supp.
21-5812[a][1][A], which applies when damage by fire or explo-
sion occurs to "a dwelling in which another person has any interest
without the consent of such other person"). We will not review the
Court of Appeals' discussion regarding that provision because we
are not called on today to define the unit of prosecution under the
arson statute's subsections. If we tried to sort those out, we would
be issuing advisory opinions rather than deciding the actual con-
troversy before us. See State ex rel. Morrison v. Sebelius, 285
Kan. 875, 898, 179 P.3d 366 (2008). We likewise do not reach the
parties' arguments that go beyond the language at issue.
Even so, part of their arguments and the Court of Appeals'
discussion remains relevant because they focus on the phrase
"building or property," which is found in both (a)(1) and (b)(1).
Buchanan's primary argument is that this phrase uses singular, ra-
ther than the plural, forms of "building or property" and all the
apartments were part of a large building and property. He points
out that the Legislature could have used these words' plural forms
or added the phrase "portion thereof" in the arson statutes, but it
did not.
We are not persuaded those changes are necessary for the unit
of prosecution to be an individual apartment, however, because of
the criminal code's definition of "[p]roperty." See K.S.A. 2022
Supp. 21-5111(w).
Before discussing that definition, we address Buchanan's mis-
guided criticism of the Court of Appeals' reliance on that and other
definitions because, among other things, they are not part of the
arson statute. His argument does not account for our duty to dis-
cern legislative intent about the scope of the unit of prosecution.
See Schoonover, 281 Kan. at 497-98. When discerning intent, we
consider the words used by the Legislature. See Valdiviezo-Mar-
tinez, 313 Kan. at 617-18 ("[C]ourts . . . seek to determine the
Legislature's intent by examining the statute's wording."). And the
VOL. 317 SUPREME COURT OF KANSAS 453
State v. Buchanan
Legislature has directed courts and others to use the definition sec-
tion "when the words and phrases defined are used in this [crimi-
nal] code." K.S.A. 2022 Supp. 21-5111. It is thus appropriate to
rely on the Legislature's stated meaning of "[p]roperty."
The criminal code definition section defines "[p]roperty" as
"anything of value, tangible or intangible, real or personal."
K.S.A. 2022 Supp. 21-5111(w). And it defines "[r]eal property"
as "every estate, interest, and right in lands, tenements and here-
ditaments." K.S.A. 2022 Supp. 21-5111(bb). Apartment tenants
hold interests in real property and, more specifically, possess hab-
itation rights in their apartments that allow excluding others. See
K.S.A. 58-2543(o); State v. Bollinger, 302 Kan. 309, 314, 352
P.3d 1003 (2015) (discussing K.S.A. 2014 Supp. 21-
5812[a][1][A] and stating: "This court has held that the State is
not required to establish exactly what the nature of the 'any inter-
est' is, be it a fee simple, a rental, or a tenancy, in order to satisfy
the statutory requirement.").
Applying the Legislature's definitions to aggravated arson's
elements under K.S.A. 2022 Supp. 21-5812(b)(1), the focus is on
a property, including an apartment, in which there is a person. In
this statute's context, the singular form of property conveys that
damage to each property, including each apartment in an apart-
ment building, constitutes a unit of prosecution.
This reading of the statute adheres to the long-understood pur-
pose of criminalizing arson, which "was to preserve the security
of the habitation." Poulos, The Metamorphosis of the Law of Ar-
son, 51 Mo. L. Rev. 295, 300 n.17 (1986) (citing 4 W. Blackstone,
Commentaries on the Laws of England 220 [1st American ed.
1772]).
We hold the unit of prosecution that supported Buchanan's six
convictions for aggravated arson committed under K.S.A. 2022
Supp. 21-5812(b)(1)—that is, arson committed upon a property in
which there is a person—reflects the unit of prosecution intended
by the Legislature. Under this unit of prosecution, Buchanan could
be convicted and sentenced for six counts of aggravated arson for
damaging by fire six apartments in which there was a person.
454 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
Buchanan thus does not suffer a double jeopardy violation
when convicted on multiple counts arising from damage by fire to
separate apartments, each with a person inside.
ISSUE 2: SUFFICIENT EVIDENCE OF INTENT TO KILL
Buchanan next argues the State failed to present sufficient ev-
idence that he specifically intended to kill Maraya, her mother,
and her brother.
Our standard for reviewing this argument is well established:
When the evidence's sufficiency is challenged in a criminal case,
appellate courts review the evidence in a light most favorable to
the State to determine whether a rational fact-finder could have
found the defendant guilty beyond a reasonable doubt. Appellate
courts do not reweigh evidence, resolve evidentiary conflicts, or
weigh in on witness credibility. State v. Aguirre, 313 Kan. 189,
209, 485 P.3d 576 (2021).
As Buchanan points out, the State must present evidence prov-
ing each element of the crime. State v. Kettler, 299 Kan. 448, 471,
325 P.3d 1075 (2014). Here, the crime at issue is attempted first-
degree murder.
"[I]n prosecutions for an attempted crime—when the statute defining the crime
does not include an attempt as a means of violating that statute—the default rule
in K.S.A. 2020 Supp. 21-5301(a) requires the State to prove the defendant had
the specific intent to commit the intended crime, even if that crime would not
require specific intent as a completed crime." State v. Mora, 315 Kan. 537, 543,
509 P.3d 1201 (2022).
First-degree murder includes the specific intent to kill a human
being with premeditation. K.S.A. 2022 Supp. 21-5402(a)(1); State
v. Mattox, 305 Kan. 1015, 1025, 390 P.3d 514 (2017). Premedita-
tion means thinking about killing a person before doing so. State
v. Stanley, 312 Kan. 557, 571, 478 P.3d 324 (2020). "It requires a
period, however brief, of thoughtful, conscious reflection and
pondering—done before the final act of killing—that is sufficient
to allow the actor to change his or her mind and abandon his or
her previous impulsive intentions." 312 Kan. at 574.
The State thus had to prove that Buchanan had the specific
intent to kill and that he premeditated the murder of Maraya, her
mother, and her brother. "Specific intent is a question of fact for
VOL. 317 SUPREME COURT OF KANSAS 455
State v. Buchanan
the jury which may be established by acts, circumstances, and in-
ferences and need not be shown by direct proof." State v. Mitchell,
262 Kan. 434, 437, 939 P.2d 879 (1997).
Ample evidence allowed a rational juror to conclude beyond
a reasonable doubt that Buchanan intended to murder Maraya, her
mother, and her brother and had premeditated that murder. Bu-
chanan asked a neighbor to remove his property from Maraya's
apartment, suggesting he planned to destroy the apartment. He
then drove from Missouri to Kansas bringing or otherwise obtain-
ing a bottle of acetone. Once there, he ignited the fire in a location
that blocked Maraya and her family from exiting the apartment.
The fire was set just before 4 a.m. when people would be expected
to be at home and asleep. And the evidence of text messages and
other communications before and after the fire revealed Buchan-
an's anger, resentment, and lack of compassion.
Buchanan attempts to offset this evidence by pointing to tes-
timony that Maraya's mother moved her car in the hopes Bu-
chanan would think she was gone when he came to get his key.
Buchanan uses this testimony to argue he had no way of knowing
whether anyone was home, and he thus could not have had the
intent to kill the apartment's occupants. But Buchanan testified he
learned during the trial that the car had been moved. The absence
of the car was not a matter he noticed or considered before setting
the fire.
Buchanan also argues that the evidence shows only an intent
to start the fire, and although intent may be proven by circumstan-
tial evidence, just showing he intended to start a fire did not estab-
lish he intended to murder the apartment's occupants. For support,
he cites State v. Phillips, 299 Kan. 479, 498, 325 P.3d 1095
(2014), which held that use of a deadly weapon, without more,
cannot prove premeditation. Here, however, there was much more
evidence of intent than just starting a fire. Buchanan's own words
before and after the fire and his act of starting the fire in a location
that would block the family's ability to escape reveal his intent to
commit murder. His call to the neighbor raised an inference he
formed the plan to destroy the apartment several hours before he
drove from his place to the apartment where he started the fire in
a location that would block the exit. This and other evidence
456 SUPREME COURT OF KANSAS VOL. 317
State v. Buchanan
would allow a reasonable juror to conclude he considered his ac-
tion and formed the intent to commit murder before attempting to
do so.
We hold there was sufficient evidence to support the convic-
tions for attempted first-degree murder.
ISSUE 3: NO VIOLATION OF RIGHT TO CONFLICT-FREE COUNSEL
In his final claim, Buchanan asserts that the district court
judge erred in disposing of his motion for a new trial in a cursory
fashion. He contends he was denied his right to conflict-free coun-
sel, a right guaranteed by the Sixth Amendment to the United
States Constitution and section 10 of the Kansas Constitution Bill
of Rights.
When a defendant raises a timely pro se posttrial motion for a
new trial, the motion is a critical stage in the proceedings during
which the defendant is entitled to counsel and the correlative right
that counsel have no conflicts of interest. State v. Sharkey, 299
Kan. 87, 95-100, 322 P.3d 325 (2014). In that situation, if the
judge fails to make an adequate inquiry into the potential conflict,
prejudice is presumed. 299 Kan. at 96-101.
But Buchanan's motion was untimely. A motion for new trial,
other than on the ground of newly discovered evidence, must be
filed within 14 days of the verdict. Buchanan filed his motion
nearly two months later. K.S.A. 2022 Supp. 22-3501. Such an un-
timely motion is considered a postconviction collateral proceed-
ing. As such, K.S.A. 22-4506, which governs the entitlement of
counsel in postconviction proceedings, applies. 299 Kan. at 95.
Under that statute, a judge "may determine that the motion, files,
and records of the case conclusively show that the movant is enti-
tled to no relief, in which case [the judge may] summarily deny
the motion without appointing counsel." Albright v. State, 292
Kan. 193, 196, 251 P.3d 52 (2011). The determination of whether
the motion presents substantial questions of law justifying the ap-
pointment of counsel rests within a district court judge's sound
discretion. State v. Kingsley, 252 Kan. 761, 766, 851 P.2d 370
(1993); see Albright, 292 Kan. at 196. Judicial discretion is abused
if the action is (1) arbitrary, fanciful, or unreasonable; (2) based
VOL. 317 SUPREME COURT OF KANSAS 457
State v. Buchanan
on an error of law; or (3) based on an error of fact. State v. Ward,
292 Kan. 541, 550, 256 P.3d 801 (2011).
The record here shows that all posttrial issues Buchanan pur-
sues on appeal relating to his dissatisfaction with counsel are ar-
guments he raised before trial. He has abandoned any other argu-
ments. See State v. Galloway, 316 Kan. 471, 479, 518 P.3d 399
(2022).
The judge had thoroughly considered those preserved com-
plaints at the pretrial conference and knew they concerned strate-
gic decisions made by counsel. Strategic choices by counsel after
a thorough investigation of law and facts are generally unchal-
lengeable. Sola-Morales v. State, 300 Kan. 875, 887, 335 P.3d
1162 (2014).
Given this general rule and the judge's previous exploration of
counsel's investigation, the judge could summarily deny Buchan-
an's motion without appointing counsel. The judge's decision was
not arbitrary, fanciful, or unreasonable, was not based on an error
of law, and was not based on an error of fact. The district court
judge thus did not err in denying the motion for a new trial or in
failing to appoint new counsel.
Judgment of the Court of Appeals affirming the district court
is affirmed. Judgment of the district court is affirmed.
STANDRIDGE, J., not participating.
458 SUPREME COURT OF KANSAS VOL. 317
State v. Johnson
No. 124,064
STATE OF KANSAS, Appellee, v. DARRYLN MICHAEL JOHNSON,
Appellant.
___
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Challenge to Constitutional Validity of Waiver— Out-
side Definition of Illegal Sentence. A claim challenging the constitutional
validity of a waiver relinquishing the right to have a jury determine the ex-
istence of upward departure aggravating factors falls outside the definition
of an illegal sentence, overruling State v. Duncan, 291 Kan. 467, 472-73,
243 P.3d 338 (2010).
2. SAME—Absent Illegal Sentence Claim—Lack of Jurisdiction by Appel-
late Court to Review Agreement Approved by Sentencing Court. Absent a
valid illegal sentence claim under K.S.A. 2022 Supp. 22-3504, an appel-
late court lacks jurisdiction to review a sentence resulting from an agree-
ment between the State and the defendant that the sentencing court ap-
proves on the record.
Review of the judgment of the Court of Appeals in an unpublished opinion
filed July 29, 2022. Appeal from Shawnee District Court; STEVEN R. EBBERTS,
judge. Oral argument held March 29, 2023. Opinion filed June 30, 2023. Judg-
ment of the Court of Appeals affirming the district court is reversed, and the
appeal is dismissed.
Grace Tran, of Kansas Appellate Defender Office, argued the cause, and
Jennifer C. Bates, of the same office, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek
Schmidt, attorney general, was with her on the briefs for appellee.
The opinion of the court was delivered by
STANDRIDGE, J.: Darryln Johnson pleaded guilty to two
counts of sexual exploitation of a child. The district court advised
Johnson of—and he exercised—his constitutional right to waive a
jury trial on criminal liability for the crimes charged. As part of
his plea, Johnson agreed to an upward departure from the guide-
lines sentence based on his stipulation to the existence of two ag-
gravating factors. The court approved this agreement on the record
but did not advise Johnson of his separate statutory right under
K.S.A. 2019 Supp. 21-6817 to have the aggravating factors—
which increased his sentence beyond the statutory maximum—
VOL. 317 SUPREME COURT OF KANSAS 459
State v. Johnson
proved to a jury beyond a reasonable doubt. The district court sen-
tenced Johnson to 180 months in prison with lifetime postrelease
supervision, as contemplated by the plea agreement.
Johnson appealed, arguing for the first time on appeal that his
sentence was illegal under K.S.A. 2021 Supp. 22-3504 because he
was not advised of and did not knowingly and voluntarily waive
his right to a jury trial on the upward departure factors. The Court
of Appeals panel interpreted Johnson's challenge as a constitu-
tional one that generally cannot be raised in a motion to correct
illegal sentence. Rather than dismissing the appeal for lack of ju-
risdiction, however, the panel relied on our opinion in State v.
Duncan, 291 Kan. 467, 470-71, 243 P.3d 338 (2010), as an excep-
tion to the jurisdictional bar and rejected his challenge on the mer-
its, holding (1) an aggravating factors jury needs to convene only
when there is an issue of fact and there was no issue of fact be-
cause Johnson pleaded guilty; and (2) even if the district court vi-
olated Johnson's rights, any error was harmless. State v. Johnson,
No. 124,064, 2022 WL 3017620, at *2-3 (Kan. App. 2022) (un-
published opinion).
While K.S.A. 2022 Supp. 22-3504 vests appellate courts with
jurisdiction to hear the appeal of an illegal sentence, we hold that
a district court's failure to advise—and obtain a waiver from—the
defendant of the right to have a jury determine aggravating factors
beyond a reasonable doubt falls outside the scope of an illegal sen-
tence as defined by K.S.A. 2022 Supp. 22-3504. As no other stat-
ute provides a possible jurisdictional basis, we dismiss Johnson's
appeal for lack of jurisdiction. In so holding, we expressly over-
rule our prior opinion in Duncan. Because the panel relied on
Duncan to reach the merits of the appeal, we reverse the Court of
Appeals' judgment and dismiss the appeal for lack of jurisdiction.
PROCEDURAL HISTORY
In April 2015, Johnson's parole officer reported to law en-
forcement a belief that Johnson possessed child pornography on
his phone. The court issued a search warrant and, when executed,
law enforcement discovered two videos depicting sexually ex-
plicit conduct of a child under 14 recorded by Johnson. In the vid-
460 SUPREME COURT OF KANSAS VOL. 317
State v. Johnson
eos, Johnson recorded a 6-year-old girl who was partially un-
dressed in a changing room at a retail store. Johnson gave the child
directions and told her how to pose. Law enforcement learned the
child was the granddaughter of Johnson's long-time friend, and
Johnson was helping the child shop for an Easter dress. The State
charged Johnson with three counts of sexual exploitation of a
child, two of which were off-grid crimes because Johnson rec-
orded the two videos himself.
The parties reached a plea agreement. Johnson agreed to plead
to an amended complaint charging two severity level 5 counts of
sexual exploitation of a child. The parties agreed to jointly recom-
mend Johnson serve an upward departure sentence of 180 months
in prison. In the agreement, the parties acknowledged that
"[the] agreement is expressly conditioned on the defendant stipulating to, and
agreeing to, an upward durational departure in order to receive a sentence of 180
months in prison. The Defendant agrees to stipulate to the following aggravating
factors pursuant to K.S.A. 21-6815:
The victim was particularly vulnerable due to age which was known or
should have been known to the offender. K.S.A. 21-6815(c)(2)(A); and/or
The offense involved a fiduciary relationship which existed between the de-
fendant and the victim. K.S.A. 21-6815(c)(2)(D)."
At sentencing, the State summarized the factual basis for its
original charges. The detective who investigated Johnson's phone
testified at the sentencing hearing as to the phone's contents. The
State also presented the two videos. The videos zoom in on the
child's nude top and crotch area.
Johnson also testified at the hearing. He admitted to both ag-
gravating factors by acknowledging the child victim was of a vul-
nerable age and that he violated a fiduciary trust relationship with
the child victim. Consistent with the plea agreement and the
amended complaint, the district court sentenced Johnson to 180
months in prison with lifetime post-release supervision. Also con-
sistent with the agreement, the court found the offense involved a
fiduciary relationship, and the victim was particularly vulnerable
due to age.
Johnson appealed, arguing his sentence is illegal because he
was not advised of and did not knowingly and voluntarily waive
VOL. 317 SUPREME COURT OF KANSAS 461
State v. Johnson
his right to a jury trial on the upward departure aggravating fac-
tors. The Court of Appeals held the sentence was not illegal and
affirmed the district court. Johnson, 2022 WL 3017620, at *1, 4-
5. Johnson petitioned this court for review, again arguing his sen-
tence was illegal because he was never advised of, nor did he
waive, his right to have a jury determine the facts to support the
upward departure. The State cross-petitioned, asking us to clarify
or overrule Duncan because it conflicts with our well-established
caselaw over the past decade holding that a motion to correct an
illegal sentence is not the proper vehicle to raise a constitutional
challenge to the sentence imposed.
ANALYSIS
Johnson argues his sentence is illegal because the district
court relied on aggravating factors to impose a sentence above the
statutory maximum authorized by statute without advising him
and obtaining a knowing and voluntary waiver of the right to have
a jury determine those aggravating factors beyond a reasonable
doubt. Whether a sentence is illegal is a question of law subject to
de novo review. State v. Juiliano, 315 Kan. 76, 78, 504 P.3d 399
(2022). Statutory interpretation is also a legal question subject to
unlimited review. State v. Clark, 313 Kan. 556, 572, 486 P.3d 591
(2021).
An illegal sentence is defined as: (1) a sentence imposed by
a court without jurisdiction; (2) a sentence that does not conform
to the applicable statutory provision, either in character or pun-
ishment; or (3) a sentence that is ambiguous with respect to the
time and manner in which it is to be served. K.S.A. 2022 Supp.
22-3504(c)(1). Johnson's argument does not allege that the court
lacked jurisdiction to impose the sentence or that the sentence
imposed was ambiguous, so we construe his illegal sentence
claim as grounded in the second definition of the statute: that
his sentence does not conform to the applicable statutory provi-
sion, either in character or punishment.
We have held the "applicable statutory provision" in K.S.A.
2022 Supp. 22-3504(c)(1) is limited to those statutory provisions that
define the crime, assign the category of punishment, or involve the
criminal history classification axis. See State v. Alford, 308 Kan.
462 SUPREME COURT OF KANSAS VOL. 317
State v. Johnson
1336, 1340, 429 P.3d 197 (2018). This includes whether a person's
previous conviction was properly classified under the Kansas Sen-
tencing Guidelines Act (KSGA) when determining criminal history.
See State v. Dickey, 305 Kan. 217, 221-22, 380 P.3d 230 (2016).
A claim that a sentence fails to conform to the applicable
statutory provision is not the same as a claim that a sentence
fails to conform to constitutional requirements. State v. Ed-
wards, 281 Kan. 1334, 1337, 135 P.3d 1251 (2006). "Because
this narrow, statutory definition does not include a claim that a
sentence violates a constitutional provision, a motion to correct
an illegal sentence under [K.S.A. 22-3504] is not a proper vehi-
cle to raise such a constitutional challenge." State v. R. H., 313
Kan. 699, 702, 490 P.3d 1157 (2021) (citing State v. Bryant, 310
Kan. 920, 922, 453 P.3d 279 [2019]); see State v. Mitchell, 284
Kan. 374, 377, 162 P.3d 18 (2007) (definition of illegal sentence
does not encompass violations of constitutional provisions).
Johnson claims his sentence is illegal because it does not
conform to K.S.A. 2022 Supp. 21-6817(b)(2), which gives a de-
fendant the right to have a jury—instead of the court—determine
whether aggravating factors have been proved beyond a reason-
able doubt. Johnson acknowledges this right can be waived. See
K.S.A. 2022 Supp. 21-6817(b)(4). But he argues his sentence is
illegal because the court imposed an upward departure sentence
without advising him and obtaining a knowing and voluntary
waiver of the statutory right. In response, the State argues John-
son's claim alleging the lack of a knowing and voluntary waiver
is a constitutional claim that does not meet the statutory defini-
tion of an illegal sentence.
Given this dispute between the parties, we must decide the
nature of Johnson's claim before addressing the merits. The ques-
tion presented is (1) whether Johnson's claim alleges his sentence
does not conform to the applicable statutory provision, either in
character or punishment, or (2) whether Johnson's claim alleges
his sentence violates a constitutional provision. To resolve this
question, we begin with the statutes cited by Johnson to argue his
sentence does not conform to the applicable statutory provision.
• K.S.A. 2022 Supp. 21-6815(b), which provides that, sub-
ject to K.S.A. 2022 Supp. 21-6817(b), aggravating factors
VOL. 317 SUPREME COURT OF KANSAS 463
State v. Johnson
that increase the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond
a reasonable doubt.
• K.S.A. 2022 Supp. 21-6817(b)(2), which requires the
court to decide whether the aggravating factors should be
submitted to a jury during trial or to a jury in a separate
departure sentencing hearing after determination of the
defendant's innocence or guilt.
• K.S.A. 2022 Supp. 21-6817(b)(4), which applies if the
court decides the aggravating factors should be presented
at a separate departure sentencing hearing and provides
that the defendant can waive the right to have a jury de-
cide aggravating factors in the manner provided by
K.S.A. 22-3403. If a jury determination on aggravating
factors is waived, the court will conduct the upward dura-
tional departure sentence proceeding.
• K.S.A. 22-3403(1), which permits the parties—with the
court's consent—to submit the trial of any felony to the
court.
In short, these statutes give a defendant (1) the right to have a
jury determine whether aggravating factors exist and (2) the abil-
ity to waive that right upon agreement by defendant with the con-
sent of the court. Johnson argues his sentence is illegal because it
does not conform to the "applicable statutory provision" in K.S.A.
2022 Supp. 21-6817(b), which gives a defendant the right to have
a jury determine aggravating factors unless waived by the defend-
ant. But Johnson's illegal sentence argument is based on a faulty
premise—that K.S.A. 2022 Supp. 21-6817(b) is the "applicable
statutory provision" under the facts of his case. As we have held,
the "applicable statutory provision" language in K.S.A. 2022
Supp. 22-3504(c)(1) is limited to those statutory provisions that
define the crime, assign the category of punishment, or involve
the criminal history classification axis. See Alford, 308 Kan. at
1340. Notably, none of the K.S.A. 2022 Supp. 21-6817(b) provi-
sions define the crime of sexual exploitation of a child, assign a
category of punishment to be imposed on conviction of that crime,
464 SUPREME COURT OF KANSAS VOL. 317
State v. Johnson
or involve the criminal history classification axis. Instead, K.S.A. 2022
Supp. 21-6817(b) is part of a procedural framework for determining
the existence of aggravating factors for upward departure sentences.
The upward departure sentence imposed here was authorized because
Johnson committed the crime of sexual exploitation of a child under
circumstances where the victim was particularly vulnerable and in-
volved a fiduciary relationship. For this reason, we conclude that a
claim challenging the constitutional validity of a waiver relinquishing
the right to have a jury determine the existence of upward departure
aggravating factors under K.S.A. 2022 Supp. 21-6817(b) does not
qualify as an "applicable statutory provision, either in character or pun-
ishment" under the illegal sentence statute, K.S.A. 2022 Supp. 22-
3504(c)(1).
And the arguments presented by Johnson in both his brief to
the Court of Appeals and in his petition for review lead us to con-
clude that his claim depends solely on constitutional principles:
"Mr. Johnson did not waive his right to have a jury determine the facts sup-
porting any upward departure. To effect a knowing and voluntary waiver of the
right to jury trial, a criminal defendant must be informed by the district court of
that right and must then clearly and unequivocally give up that right. See State v.
Rizo, 304 Kan. 974, Syl. ¶ 2, 377 P.3d 419 (2016); State v. Beaman, 295 Kan.
853, 858-59, 286 P.3d 876 (2012). A generic waiver of the jury trial right regard-
ing guilt or innocence does not encompass the right to have a jury determine the
facts supporting an upward durational departure—a defendant must be explicitly
informed of that right to effectively waive it. State v. Duncan, 291 Kan. 467,
472-73, 243 P.3d 338 (2010)."
Johnson challenges the constitutional validity of the jury
waiver and not a statutorily unauthorized sentence. Consistent
with longstanding precedent, Johnson is precluded from using
K.S.A. 22-3504 to challenge the constitutional validity of a
waiver relinquishing the right to have a jury determine the exist-
ence of upward durational departure factors. See State v. Gayden,
281 Kan. 290, 292-93, 130 P.3d 108 (2006) (holding claim that
cumulative punishments for six convictions violated Double
Jeopardy Clause of Fifth Amendment to United States Constitu-
tion cannot be properly raised in motion to correct illegal sen-
tence); see also Mitchell, 284 Kan. at 377 (holding district court
properly concluded it lacked jurisdiction under K.S.A. 22-3504
VOL. 317 SUPREME COURT OF KANSAS 465
State v. Johnson
to address constitutional challenges to sentence on grounds it vi-
olated double jeopardy, equal protection, and Eighth Amend-
ment).
With no valid illegal sentence claim under K.S.A. 2022
Supp. 22-3504, we lack jurisdiction to review Johnson's sentence
because he agreed to the sentence and the district court approved
the agreement on the record. See K.S.A. 2022 Supp. 21-
6820(c)(2) ("On appeal from a judgment of conviction entered
for a felony committed on or after July 1, 1993, the appellate
court shall not review . . . any sentence resulting from an agree-
ment between the state and the defendant which the sentencing
court approves on the record.").
We acknowledge that our holding today appears to conflict
with the holding we announced under a similar challenge in Dun-
can, 291 Kan. at 470-71. As here, Duncan pleaded guilty to a
reduced charge but agreed to a specific upward durational depar-
ture sentence. After a colloquy with the district court, he waived
all rights associated with the guilt phase of a jury trial and
pleaded guilty. The district court, however, did not ask him to
and he did not waive his right to have a jury determine the exist-
ence of aggravating factors. The district court imposed the
agreed-upon upward departure sentence and granted him proba-
tion.
The court ultimately revoked probation and Duncan ap-
pealed, claiming his sentence was illegal. To support his illegal
sentence claim, Duncan argued the district court violated his con-
stitutional rights by imposing an upward departure sentence with-
out a valid waiver of the right to have a jury determine the aggra-
vating factors. The State argued the court did not have jurisdic-
tion to consider Duncan's claim because K.S.A. 21-4721 (the pre-
decessor to K.S.A. 21-6820) prohibits the appellate court from
reviewing "any sentence resulting from an agreement between
the state and the defendant which the sentencing court approves
on the record." 291 Kan. at 470.
We rejected the State's jurisdictional argument, holding that
"an appellate court's jurisdiction to consider a challenge to a sen-
tence is limited to those grounds authorized by [K.S.A. 21-4721]
or a claim that the sentence is otherwise illegal." 291 Kan. at
466 SUPREME COURT OF KANSAS VOL. 317
State v. Johnson
470. Since Duncan, we have consistently reaffirmed the rule that
an appellate court has jurisdiction to correct an illegal sentence
even if it were agreed to in a plea and approved by the court on
the record. See State v. Quested, 302 Kan. 262, 264, 352 P.3d
553 (2015); see also K.S.A. 2022 Supp. 21-6820(a) (adding lan-
guage authorizing appeal of a ruling on a motion to correct illegal
sentence under K.S.A. 22-3504).
After finding Duncan cleared the jurisdictional hurdle by
claiming his sentence was illegal, we moved to the merits of his
waiver challenge. 291 Kan. at 471. After reviewing the plea
agreement and the transcript of the plea hearing, we held Duncan
did not make a constitutionally valid waiver of his right to a jury
determination of the aggravating sentencing factors. 291 Kan. at
473. In discussing the appropriate remedy for this constitutional
deficiency, we noted K.S.A. 21-4718 did not permit the district
court to empanel a jury solely to conduct an upward durational
departure proceeding when the defendant has pleaded guilty.
Thus, we vacated Duncan's sentence and remanded for resentenc-
ing without an upward departure.
In retrospect, we find our jurisdictional decision in Duncan is
analytically flawed. We properly held an appellate court has juris-
diction to review an illegal sentence claim. We then concluded an
upward departure sentence imposed in an unconstitutional pro-
ceeding results in an illegal sentence, which in turn gave us juris-
diction to consider Duncan's constitutional claim. Missing from
this analysis is the essential inquiry into whether his constitutional
claim of error met the definition of an illegal sentence by consid-
ering if (1) the sentence was imposed by a court without jurisdic-
tion; (2) the sentence failed to conform to the applicable statutory
provision, either in the character or punishment; or (3) the sen-
tence was ambiguous with respect to the time and manner in which
it is to be served.
Although Duncan was decided in 2010 and K.S.A. 22-3504
did not include this definition of an illegal sentence until the stat-
ute was amended in 2017, we have repeatedly used this specific
definition in our caselaw dating back to at least 1986. See State v.
Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986) ("An 'illegal
VOL. 317 SUPREME COURT OF KANSAS 467
State v. Johnson
sentence' is either a sentence imposed by a court without jurisdic-
tion; a sentence which does not conform to the statutory provi-
sions, either in the character or the term of the punishment author-
ized; or a sentence which is ambiguous with respect to the time
and manner in which it is to be served."). Had we properly evalu-
ated Duncan's constitutional claim to determine whether it met the
definition of an illegal sentence, we are confident our holdings
would have been the same as the ones we reach today:
• A claim challenging the constitutional validity of a waiver
relinquishing the right to have a jury determine the exist-
ence of upward departure aggravating factors under
K.S.A. 2022 Supp. 21-6817(b) falls outside the definition
of an illegal sentence.
• Absent a valid illegal sentence claim under K.S.A. 2022
Supp. 22-3504, an appellate court lacks jurisdiction to re-
view a sentence resulting from an agreement between the
State and the defendant which the sentencing court ap-
proves on the record.
To the extent Duncan conflicts with our holdings today, we
overrule it. "We do not overrule precedent lightly and must give
full consideration to the doctrine of stare decisis." State v. Sher-
man, 305 Kan. 88, 107, 378 P.3d 1060 (2016). "We recognize
that '[t]he application of stare decisis ensures stability and conti-
nuity—demonstrating a continuing legitimacy of judicial review.
Judicial adherence to constitutional precedent ensures that all
branches of government, including the judicial branch, are bound
by law.'" Herington v. City of Wichita, 314 Kan. 447, 456, 500
P.3d 1168 (2021) (quoting Crist v. Hunan Palace, Inc., 277 Kan.
706, 715, 89 P.3d 573 [2004]).
But stare decisis "'is not a rigid inevitability but a prudent gov-
ernor on the pace of legal change.'" Herington, 314 Kan. at 456
(quoting State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417
[2016]). "While this court is not inexorably bound by its own prec-
edent, we generally will follow the law of earlier cases unless
clearly convinced that the rule 'was originally erroneous or is no
longer sound because of changing conditions and that more good
than harm will come by departing from precedent.'" 314 Kan. at
468 SUPREME COURT OF KANSAS VOL. 317
State v. Johnson
457 (quoting Sherman, 305 Kan. at 108). In this case, we are
clearly convinced that we erred in Duncan. Our holdings today
correct this previous error.
CONCLUSION
We hold a claim challenging the constitutional validity of a
waiver relinquishing the statutory right under K.S.A. 2022 Supp.
21-6817(b) to have a jury determine the existence of upward de-
parture aggravating factors falls outside the definition of an illegal
sentence. Absent a valid illegal sentence claim under K.S.A. 2022
Supp. 22-3504, an appellate court has no jurisdiction to review a
sentence resulting from an agreement between the State and the
defendant that the court approves on the record. Based on these
holdings, we expressly overrule our prior opinion in Duncan, 291
Kan. 467. Because the panel relied on Duncan to reach the merits
of the appeal, we reverse the Court of Appeals' decision and dis-
miss the appeal for lack of jurisdiction. We deny as moot the
State's motion for supplemental briefing on the issue of harmless
error and note Johnson's response to the State's motion.
Judgment of the Court of Appeals affirming the district court
is reversed, and the appeal is dismissed.
VOL. 317 SUPREME COURT OF KANSAS 469
In re Marriage of Holliday
No. 124,116
In the Matter of the Marriage of JON HOLLIDAY, Appellant, and
TAMARA HOLLIDAY, Appellee.
___
SYLLABUS BY THE COURT
1. DIVORCE—Division of Retirement Account—Judgment Subject to Dor-
mancy If Qualifies as Final Determination of Parties' Interests. A district
court's division of a retirement account in a divorce proceeding constitutes
a judgment subject to dormancy under K.S.A. 2022 Supp. 60-2403 when
the division order qualifies under K.S.A. 2022 Supp. 60-254(a) as a final
determination of the parties' interests in the marital estate.
2. JUDGMENTS—Dormancy Period under Statute Does Not Run if Judg-
ment is Stayed or Prohibited. The dormancy period under K.S.A. 2022
Supp. 60-2403(c) does not run "during any period in which the enforcement
of the judgment by legal process is stayed or prohibited."
3. DIVORCE—Statutory Tolling Provision Prevents Division of Interests in
KPERS Retirement Account Until Benefits are Payable. K.S.A. 2022 Supp.
60-2403(c)'s tolling provision prevents a divorce decree dividing the parties'
interests in a retirement account with the Kansas Public Employee Retire-
ment System from becoming dormant until benefits become payable to the
plan member.
Review of the judgment of the Court of Appeals in an unpublished opinion
filed September 23, 2022. Appeal from Jackson District Court; C
HRISTOPHER T.
ETZEL, judge. Oral argument held May 16, 2023. Opinion filed June 30, 2023.
Judgment of the Court of Appeals reversing the district court is reversed. Judg-
ment of the district court is affirmed.
Shawna R. Miller, of Miller Law Office, LLC, of Holton, argued the cause
and was on the brief for appellant.
Cecilia T. Mariani, of Topeka, argued the cause and was on the briefs for
appellee.
The opinion of the court was delivered by
BILES, J.: When Jon and Tamara Holliday divorced in 2009
after 24 years of marriage the district court divided Jon's not-yet-
payable retirement account with the Kansas Public Employees Re-
tirement System equally between them. It directed Tamara to pre-
pare a qualified domestic relations order "to effectuate this divi-
sion." In 2021, as Jon readied for retirement, he asked the court to
470 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Holliday
extinguish Tamara's interest in his KPERS account. He claimed
her judgment from the divorce had gone dormant because she did
not send a copy of it to KPERS as instructed. The district court
rejected this argument, but a Court of Appeals panel agreed with
it. On review to resolve the conflict, we hold K.S.A. 2020 Supp.
60-2403(c) tolled the dormancy period until Jon's benefits from
his KPERS account became payable. We reverse the Court of Ap-
peals panel that held otherwise and affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
No one disputes what happened. The 2009 divorce decree di-
vided Jon's KPERS retirement account equally between the cou-
ple, with the valuation date tied to the divorce petition's filing. The
court directed Tamara to prepare within 60 days a qualified do-
mestic relations order recognizing her right as an alternate payee
to receive a portion of Jon's KPERS plan assets—but that did not
happen. Twelve years later, as he prepared to retire, Jon moved to
extinguish Tamara's judgment in his KPERS account under the
dormancy statute, K.S.A. 2020 Supp. 60-2403(a)(1), which estab-
lishes circumstances under which a district judge must release a
judgment of record. After receiving Jon's motion, Tamara's attor-
ney sent the divorce decree to KPERS and opposed Jon's motion.
Kathleen Billings, a KPERS staff attorney, testified at an evi-
dentiary hearing on Jon's motion. She described her duties as re-
ceiving and reviewing divorce decrees and QDROs, as well as
helping interpret and enforce court orders for asset division. She
said KPERS received the Hollidays' divorce decree on April 19,
2021, and considered it sufficient for administrative processing.
She agreed the agency views a QDRO "as sort of a lien" on an
account until the member retires, dies, or withdraws from the sys-
tem. And she said KPERS would consider the Hollidays' division
order as a "Type A" QDRO that splits the accumulated contribu-
tions in the account as of a specified effective date. To process this
order, she continued, KPERS only needed to know how to split
the contributions and the date of division, so that everything be-
fore that date could be allocated as ordered, and everything else
would remain with the KPERS plan member.
VOL. 317 SUPREME COURT OF KANSAS 471
In re Marriage of Holliday
The district court denied Jon's motion to extinguish Tamara's
judgment. It observed that this circumstance differed from plans
governed by the federal Employee Retirement Income Security
Act of 1974, 29 U.S.C. § 1001 et seq. (2018), because KPERS is
a state governmental pension system controlled by Kansas law. It
found the original filing of the 2009 divorce decree with the dis-
trict court clerk within the time limit contemplated by the dor-
mancy statute equivalent to filing a QDRO with KPERS. There-
fore, it continued "a QDRO was timely filed and [Tamara's] rights
to receive her portion of the retirement benefits has been pre-
served." Jon appealed.
A Court of Appeals panel took a different view. It held the
judgment expired under the dormancy statute because Tamara
failed to timely send KPERS a copy of the decree within the
seven-year period set out in the dormancy statute. It equated this
notification as being "a form of execution on that judgment." In re
Marriage of Holliday, No. 124,116, 2022 WL 4391026, at *4
(Kan. App. 2022) (unpublished opinion) (remarking "[c]ommon
sense tells us that . . . enforcement of this judgment inherently re-
quires delivery of the divorce decree or some court order to
KPERS"). We granted Tamara's petition for review.
Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for
petitions for review of Court of Appeals decision); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Ap-
peals decisions upon petition for review).
ANALYSIS
This case presents two questions: (1) Was this 2009 divorce
judgment a final judgment subject to the dormancy statute; and (2)
if yes, when did the dormancy period commence? We start with
the applicable statutes: K.S.A. 2022 Supp. 60-2403 and K.S.A.
2022 Supp. 60-254(a). Questions of law involving statutory inter-
pretation are subject to unlimited review. Neighbor v. Westar En-
ergy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).
The dormancy statute provides in pertinent part:
"(a)(1) . . . [I]f a renewal affidavit is not filed or if execution, including any
garnishment proceeding, support enforcement proceeding or proceeding in aid
of execution, is not issued, within five years from the date of the entry of any
472 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Holliday
judgment in any court of record in this state, . . . the judgment . . . shall become
dormant, and shall cease to operate as a lien on the real estate of the judgment
debtor. When a judgment becomes and remains dormant for a period of two
years, it shall be the duty of the judge to release the judgment of record when
requested to do so. . . .
. . . .
"(c) The time within which action must be taken to prevent a judgment from
becoming dormant does not run during any period in which the enforcement of
the judgment by legal process is stayed or prohibited." K.S.A. 2022 Supp. 60-
2403.
Tamara suggests the 2009 division order should not be con-
sidered a "final judgment" because KPERS had not approved it
yet. But this argument has no merit. A "judgment" is defined as
"the final determination of the parties' rights in an action." K.S.A.
2022 Supp. 60-254(a); see also Honeycutt v. City of Wichita, 251
Kan. 451, Syl. ¶ 1, 836 P.2d 1128 (1992) ("A final decision is one
that finally decides and disposes of the entire merits of the contro-
versy and reserves no further questions or directions for the future
or further action of the court."); Bandel v. Pettibone, 211 Kan.
672, 677, 508 P.2d 487 (1973) ("It is a fundamental rule that a
judgment should be complete and certain in itself, and that the
form of the judgment should be such as to indicate with reasonable
clearness the decision which the court has rendered, so that the
parties may be able to ascertain the extent to which their rights and
obligations are fixed, and so that the judgment is susceptible of
enforcement in the manner provided by law."). A "court of record"
under K.S.A. 2022 Supp. 60-2403(a)(1) is defined as "[a] court
that is required to keep a record of its proceedings." Black's Law
Dictionary 445 (11th ed. 2019); see also Kan. Const. art. 3, § 1
("The judicial power of this state shall be vested exclusively in
one court of justice, which shall be divided into one supreme
court, district courts, and such other courts as are provided by law;
and all courts of record shall have a seal."). A district court is a
court of record. See State v. Higby, 210 Kan. 554, 558, 502 P.2d
740 (1972).
The judgment here is the 2009 divorce decree by the Jackson
County District Court. It fixes the parties' rights and obligations in
Jon's KPERS retirement account by evenly dividing its valuation
as of a date certain—the divorce petition's filing date. And
VOL. 317 SUPREME COURT OF KANSAS 473
In re Marriage of Holliday
Billings testified this 2009 decree is all that is needed for KPERS
to treat it as a QDRO to administratively process the account as
the court contemplated. We easily conclude from this that the
court's division of Jon's KPERS account constitutes a final judg-
ment under K.S.A. 2022 Supp. 60-254(a).
Following from that, the division judgment is subject to dor-
mancy under K.S.A. 2022 Supp. 60-2403(a)(1). See Bank IV
Wichita v. Plein, 250 Kan. 701, 706, 830 P.2d 29 (1992) (holding
judgment in divorce action awarding a lien on real estate to a party
was a judgment subject to dormancy). The dormancy statute
speaks of "any judgment" of any court of record in this state and
does not limit its application to just monetary judgments. 250 Kan.
701, Syl. ¶ 2. And K.S.A. 60-254(a)'s language is clear that a judg-
ment's finality does not depend on completing a subsequent min-
isterial task, such as KPERS's approval here. Instead, finality "de-
pends primarily upon the intention of the court, and upon the gov-
erning statutory provisions and rules." Roe Village, Inc. v. Board
of County Commissioners, 195 Kan. 247, 248, 403 P.2d 970
(1965). We hold the answer to our first question is Yes.
Our next question is more involved. We must decide whether
this 2009 final judgment in a not-yet-payable KPERS account be-
came dormant just because Tamara did not send a copy of it to
KPERS until 2021. To decide that we look again to the dormancy
statute's tolling provision. It states, "The time within which action
must be taken to prevent a judgment from becoming dormant does
not run during any period in which the enforcement of the judg-
ment by legal process is stayed or prohibited." (Emphasis added.)
K.S.A. 2022 Supp. 60-2403(c). And since all agree Tamara had
no way to share in Jon's account until he retired, we need to decide
whether her inability to enforce the 2009 judgment "by legal pro-
cess" before Jon retired was "stayed or prohibited." If so, the stat-
ute says the dormancy period "does not run."
The panel looked at this much differently. It simply consid-
ered "whether a judgment in a divorce decree that divides a retire-
ment account can become dormant and expire with the passage of
time." In re Marriage of Holliday, 2022 WL 4391026, at *1. And
it held that unless "some action is taken," these division judgments
474 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Holliday
can erode. 2022 WL 4391026, at *2. In the panel's view, the "ac-
tion" required of Tamara was "notification to KPERS of a judg-
ment dividing a KPERS retirement account" because this notifi-
cation was "a form of execution on that judgment." (Emphasis
added.) 2022 WL 4391026, at *4 ("With no execution, the judg-
ment can become dormant and then subject to expiration."). Alt-
hough it is true in the abstract that a judgment in a divorce decree
can become dormant as explained above, we question the panel's
conclusion that Tamara's judgment became permanently extin-
guished as to Jon's KPERS account.
The panel did not explain why mere delivery of a divorce de-
cree to KPERS years before someone can collect any benefits is a
do-or-die step in "execution" of a judgment under K.S.A. 2022
Supp. 60-2403(a)(1). And since this case turns on that missing ex-
planation, we must explore more precisely what a "qualified do-
mestic relations order" is under the KPERS statute, K.S.A. 74-
4923(b), and what "execution" is under the dormancy statute. In
doing so, we will also look at retirement plans subject to federal
ERISA provisions, which differ from KPERS plans, because the
Holliday panel relied on In re Marriage of Larimore, 52 Kan.
App. 2d 31, 44, 362 P.3d 843 (2015), for its conclusion and that
case dealt with an ERISA-governed plan.
QDROs under KPERS
The KPERS Act, K.S.A. 74-4901 et seq., offers statewide re-
tirement plans for state and local public employees, which we call
KPERS. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan.
635, Syl. ¶ 2, 941 P.2d 1321 (1997) ("As KPERS is a classic 'de-
fined benefit' retirement plan, the State of Kansas and the numer-
ous public entities whose employees are subject to the plan have
an unequivocal constitutional, statutory, and contractual obliga-
tion to ensure that KPERS has sufficient funds to pay the required
benefits to public employees who are participating in the plan.").
And K.S.A. 74-4923(b) governs division of retirement accounts
in a divorce decree. It states in pertinent part:
"Any annuity, benefits, funds, property or rights created by, or accruing to
any person under the provisions of K.S.A. 74-4901 et seq. . . . shall not be subject
to execution, garnishment or attachment, or, except as otherwise provided, any
VOL. 317 SUPREME COURT OF KANSAS 475
In re Marriage of Holliday
other process or claim whatsoever; and shall be unassignable . . . . Any annuity
or benefit or accumulated contributions due and owing to any person under the
provisions of K.S.A. 74-4901 et seq. . . . are subject to claims of an alternate
payee under a qualified domestic relations order. As used in this subsection, the
terms 'alternate payee' and 'qualified domestic relations order' shall have the
meaning ascribed to them in section 414(p) of the federal internal revenue code.
. . . [KPERS] shall not be a party to any action under the Kansas family law code,
. . . but is subject to orders from such actions issued by the district court . . . and
may also accept orders which it deems to be qualified under this subsection from
courts having jurisdiction of such actions outside the state of Kansas. Such orders
from such actions shall specify either a specific amount or specific percentage of
the amount of the pension or benefit or any accumulated contributions due and
owing from the system to be distributed by the system pursuant to this act." (Em-
phasis added.) K.S.A. 74-4923(b).
As readily seen, the statute declares a general rule that KPERS
retirement benefits cannot be seized by or assigned to any other
party. But it also provides an exception to this, by noting benefits
are subject to an alternate payee's claim under a QDRO. And the
law requires KPERS to comply with a domestic relations order
deemed to be qualified and lists elements these orders must con-
tain to be considered qualified. The Act, however, does not pro-
vide a separate definition for QDROs; it instead refers to section
414(p) of the federal Internal Revenue Code, which provides that
a QDRO "means a domestic relations order . . . which creates or
recognizes the existence of an alternate payee's right to, or assigns
to an alternate payee the right to, receive all or a portion of the
benefits payable with respect to a participant under a plan." 26
U.S.C. § 414(p)(1)(A)(i) (2018).
In Tamara's case, a domestic relations order "means any judg-
ment, decree, or order" relating to "marital property rights to a
spouse," and "made pursuant to a State . . . domestic law." 26
U.S.C. § 414(p)(1)(B). To be qualified, a domestic relations order
"must clearly specify certain facts," which are:
"(A) the name and the last known mailing address (if any) of the participant
and the name and mailing address of each alternate payee covered by the order,
"(B) the amount or percentage of the participant's benefits to be paid by the
plan to each such alternate payee, or the manner in which such amount or per-
centage is to be determined,
"(C) the number of payments or period to which such order applies, and
"(D) each plan to which such order applies." 26 U.S.C. § 414(p)(2).
476 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Holliday
In addition, a domestic relations order "may not alter amount,
form, etc., of benefits." 26 U.S.C. § 414(p)(3). In other words, it
"meets the requirements of this paragraph only if such order":
"(A) does not require a plan to provide any type or form of benefit, or any
option, not otherwise provided under the plan,
"(B) does not require the plan to provide increased benefits (determined on
the basis of actuarial value), and
"(C) does not require the payment of benefits to an alternate payee which
are required to be paid to another alternate payee under another order previously
determined to be a qualified domestic relations order." 26 U.S.C. § 414(p)(3).
While Kansas law borrows ERISA's definition of QDROs,
K.S.A. 74-4923(b) clarifies that under the KPERS Act, to be qual-
ified, the domestic relations order must specify either a specific
dollar amount or a specific percentage of the pension or benefit
due to be distributed by the system. This state law requirement is
not much different from the federal language under 26 U.S.C. §
414(p)(2)(B) ("[T]he amount or percentage of the participant's
benefits to be paid by the plan to each such alternate payee . . . .").
But under the KPERS Act, the system need not split the member's
account upon a determination of a QDRO. See K.S.A. 74-4923(b);
KPERS, QDRO Guidelines (April 30, 2023),
https://www.kpers.org/qdro ("When a QDRO is accepted by
KPERS, the alternate payee's award is maintained, in essence, as
a lien on the member's account. No separate account is main-
tained.").
This differs from ERISA, which provides that once a plan ad-
ministrator receives a domestic relations order, it must maintain a
separate account for the amounts payable to the alternate payee
while the status of a domestic relations order is being determined
as a QDRO. 26 U.S.C. § 414(p)(7)(A); see also 26 U.S.C. §
414(p)(8) (defining "alternate payee"). When this determination is
completed, the administrator "shall pay the segregated amounts"
to the alternate payee. 26 U.S.C. § 414(p)(7)(B).
Our state statute does not specify procedures for processing a
domestic relations order, even though it relies on ERISA for the
definition of QDROs. Turner, 2 Equitable Distribution of Property
§ 6:19 (4th ed. 2023), explains the federal procedures as follows:
After a state court renders a domestic relations order, typically the
VOL. 317 SUPREME COURT OF KANSAS 477
In re Marriage of Holliday
alternate payee submits it to the plan administrator. See 26 U.S.C.
§ 414(g) (defining plan administrator). The plan administrator
makes an initial determination of whether the order is qualified.
26 U.S.C. § 414(p)(6)(A)(ii). Usually this takes 18 months. 26
U.S.C. § 414(p)(7). If it determines the order to be qualified, the
alternate payee is entitled to the segregated benefits; otherwise,
"the order will then be modified by the state court judge to address
the problems which caused the plan administrator to refuse to
qualify it." Equitable Distribution of Property § 6:19. And if either
spouse disagrees with the administrator's decision about qualified
status, the issue can be tried before a judge. See 29 U.S.C.
§ 1132(e)(1) (2018) (state and federal courts have concurrent ju-
risdiction over such actions). In such cases, the plan is joined as a
party. But recall that KPERS "shall not be a party to any action
under the Kansas family law code." K.S.A. 74-4923(b). See
Snyder, Qualified Domestic Relations Orders § 11:2 (2023) ("The
general rule is that [QDRO] rules do not apply to governmental
plans unless they have elected to be covered under [ERISA]."); 26
U.S.C. § 414(d) (defining governmental plan); K.S.A. 74-4903
(KPERS is a governmental plan).
Although our state law borrows the federal definitions for a
QDRO and an alternate payee, other aspects of the KPERS Act
simply underscore that KPERS does not operate as a plan subject
to ERISA.
Execution
The next consideration is whether Tamara's notice to KPERS
of her 2009 domestic relations order years before any benefits
were due would have constituted "execution" under K.S.A. 2022
Supp. 60-2403(a)(1). We hold it would not. Recall that under
K.S.A. 2022 Supp. 60-2403, a party wishing to keep a judgment
alive must either file a renewal affidavit or issue execution. K.S.A.
2022 Supp. 60-2401(a) defines "execution" as follows:
"A general execution is a direction to an officer to seize any nonexempt property
of a judgment debtor and cause it to be sold in satisfaction of the judgment. A
special execution or order of sale is a direction to an officer to effect some action
with regard to specified property as the court determines necessary in adjudicat-
ing the rights of parties to an action."
478 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Holliday
The panel held the "action" required by the dormancy statute
in Tamara's case was "the notification to KPERS of a judgment
dividing a KPERS retirement account." In re Marriage of Hol-
liday, 2022 WL 4391026, at *4. And to reach that conclusion, the
panel relied on In re Marriage of Larimore, which dealt with an
ERISA-qualified plan. See In re Marriage of Holliday, 2022 WL
4391026, at *2-3. But as explained above, a KPERS plan is not an
apt comparison. The Holliday panel did not address that.
The Larimore panel held "[a] party may execute on a judg-
ment in a divorce decree that divides a party's retirement accounts
governed by [ERISA], by filing a [QDRO] with the retirement
plan administrator." In re Marriage of Larimore, 52 Kan. App. 2d
31, Syl. ¶ 3. And in rejecting the alternate payee's request to apply
K.S.A. 2014 Supp. 60-2403(c)'s tolling provision, the Larimore
panel noted that "because the legal process for enforcing such a
judgment—the filing of a QDRO—is not stayed or prohibited un-
til the benefits become payable," the time started running on the
date of the judgment's entry. 52 Kan. App. 2d at 44. It also noted:
"Although Janice may not have been able to receive money from
David's retirement accounts during the ensuing 12 years, the nec-
essary legal process—a QDRO—for enforcing Janice's interest in
the retirement accounts was fully available to her." 52 Kan. App.
2d at 44; see also In re Marriage of Smith, No. 105,365, 2012 WL
1649835, at *5 (Kan. App. 2012) (unpublished opinion) (holding
part of executing on a judgment was sending the QDRO to the
plan administrator; noting clock starts ticking when the judgment
was entered).
But as Tamara correctly points out, notification is not execu-
tion under K.S.A. 2022 Supp. 60-2401(a) since it is not a direction
to an officer to seize a debtor's property and sell it to satisfy the
judgment. And a renewal affidavit would have been futile until the
benefits become payable. See K.S.A. 2022 Supp. 60-2403(a)(2)
(defining "renewal affidavit" as "a statement under oath . . . stating
the remaining balance due and unpaid on the judgment"). Also,
the revivor statute would have no practical application to these
circumstances pending Jon's retirement because it is "a request for
the immediate issuance of an execution thereon if such motion is
granted." K.S.A. 60-2404.
VOL. 317 SUPREME COURT OF KANSAS 479
In re Marriage of Holliday
As discussed earlier, even if KPERS receives a domestic rela-
tions order and processes it under the KPERS Act by noting its
existence in its files, as long as Jon's retirement benefits are not
yet payable, nothing will happen. And when the benefits become
payable, the notification simply permits Tamara to receive her
share of Jon's account directly from the system. So the key effect
of a QDRO here is to require KPERS to pay a portion of the mem-
ber's benefits directly to the alternate payee once the member's
benefits become payable—but not until then.
We express no opinion whether In re Marriage of Larimore,
which applied the dormancy statute to a plan subject to ERISA,
correctly decided the issue presented. That would be a question of
first impression for our court and best left to a controversy directly
on point. But we do note important administrative differences in
the way KPERS handles division orders from those under ERISA
qualified plans, and since the Holliday panel did not address those
differences in its rationale, we consider it flawed for that reason.
The Holliday panel erred.
What the above tells us is this:
• The 2009 decree recognized Tamara and Jon's marital
property, specifically acknowledging Jon's KPERS ac-
count as part of the marital property and entitling Tamara
to an equal share as of a specified date.
• Once a DRO is delivered, KPERS will process it, and if it
contains all the necessary information, KPERS must com-
ply with it when the time comes to pay benefits.
• Jon's retirement benefits were not payable until he retires,
dies, or withdraws from KPERS. Until then, no legal pro-
cess exists for Jon to receive his retirement benefits from
KPERS, nor is there a legal process for Tamara to extract
her share. Both parties are on the same footing.
• A QDRO is a procedural mechanism in this context that
simply makes KPERS aware that it is to pay the benefits
to the alternate payee directly when they become due to
the plan member.
480 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Holliday
We hold the dormancy period tolled until Jon's retirements
benefits became payable to him from his account. In the language
of K.S.A. 2022 Supp. 60-2403(c), no legal process was available
for Tamara to enforce her judgment until Jon started receiving
benefits. Filing the court's division order with KPERS any earlier
would have had no effect unless the plan member was receiving
benefits. The result here adheres to our holding in Bank IV Wich-
ita, 250 Kan. 701, Syl. ¶ 4 ("The time within which a judgment
must be enforced to prevent it from becoming dormant does not
run during any period in which it is impossible to collect the judg-
ment by legal process."). It also aligns with K.S.A. 2022 Supp. 23-
2102. ("The provisions of the Kansas family law code shall be
construed to secure the just, speedy, inexpensive and equitable de-
termination of issues in all domestic relations matters.")
We reverse the Court of Appeals and affirm the district court
with alternate reasoning.
Judgment of the Court of Appeals reversing the district court
is reversed. Judgment of the district court is affirmed.
VOL. 317 SUPREME COURT OF KANSAS 481
In re Marriage of Shafer
No. 124,529
In the Matter of the Marriage of LISA MICHELLE SHAFER (nka
WEBSTER), Appellant, and JON FRANCIS SHAFER, Appellee.
___
SYLLABUS BY THE COURT
1. DIVORCE—Division of Retirement Account—Judgment Subject to Dor-
mancy If Qualifies as Final Determination of Parties' Interests. A district
court's division of a retirement account in a divorce proceeding constitutes
a judgment subject to dormancy under K.S.A. 2022 Supp. 60-2403 when
the division order qualifies under K.S.A. 60-254(a) as a final determination
of the parties' interests in the marital estate.
2. SAME—K.S.A. 60-260 Not Applicable When Movant Requests to Clarify
Original Property Division Order. The relief from judgment statute, K.S.A.
2022 Supp. 60-260, is not applicable when a movant merely requests to
clarify the original property division order that does not require any sub-
stantive change to the order.
Review of the judgment of the Court of Appeals in an unpublished opinion
filed September 23, 2022. Appeal from Johnson District Court; K.
CHRISTOPHER
JAYARAM, judge. Oral argument held May 16, 2023. Opinion filed June 30, 2023.
Judgment of the Court of Appeals reversing the district court is affirmed. Judg-
ment of the district court is reversed, and the case is remanded to the district
court.
Bruce W. Beye, of Overland Park, argued the cause and was on the briefs
for appellant.
Ronald W. Nelson, of Ronald W. Nelson, PA, of Overland Park, argued the
cause, and Joseph A. DeWoskin, of Kansas City, was with him on the briefs for
appellee.
The opinion of the court was delivered by
BILES, J.: When Jon Shafer and Lisa Webster divorced in
2007, the district court ordered she receive a share of Jon's Army
Reserve and National Guard retirement pay based on the months
of their marriage. He retired about 15 years later, which was when
Lisa submitted the court's division order to the federal office ad-
ministering Jon's retirement benefits. But that office said it needed
more detail to calculate Lisa's share, and the district court denied
her request to clarify its order. It reasoned the original judgment
had gone dormant under state law, and that Lisa had waited too
482 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Shafer
long to seek changes. A Court of Appeals panel reversed that rul-
ing because it believed the division order was not a final judgment
subject to dormancy. On review, we affirm the panel's judgment,
although our reasoning differs from the panel's.
We hold: (1) the division order was a final judgment, subject
to the dormancy statute; and (2) the relief from judgment statute,
K.S.A. 2020 Supp. 60-260, was not applicable because Lisa's clar-
ification request does not require substantive change to the origi-
nal property division. Our rationale on the dormancy issue under
K.S.A. 2022 Supp. 60-2403(a)(1) follows In re Marriage of Hol-
liday, 317 Kan. 470, __ P.3d __ (2023). We remand the case to
the district court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, the district court awarded Lisa a share of Jon's mili-
tary retirement benefits. The ruling states: "Army Reserve Retire-
ment Pays equal to 50% of months of marriage divided by the total
months in the Reserves" and "National Guard Retirement Pay
equal to 50% of months of marriage divided by the total months
in the Guard." It also confirmed Jon and Lisa married on February
1, 1992. Their divorce decree, entered in 2007, incorporated the
2006 division of assets and liabilities by reference. Jon retired
from service about 14 years after the divorce.
To process her share of Jon's benefits, Lisa submitted the
court's division order to the Defense Financial Accounting Ser-
vices office. But it asked for more information, including how
long, in months, the parties were married. Lisa returned to the dis-
trict court for that clarification, asking that it specify the total
months of marriage. Jon opposed the motion.
At a hearing, Lisa's attorney explained that DFAS had written
asking "the Court issue an order to clarify . . . the number of the
months of the marriage." Counsel claimed the division order was
"not a final order until that number is clarified" and said Lisa was
"not asking for a modification of the order" but just asking for a
"simple clarification." Her attorney explained, "All I am seeking
the Court to do is to plug in the number that [DFAS] is requesting
in order to enforce the order."
VOL. 317 SUPREME COURT OF KANSAS 483
In re Marriage of Shafer
Jon's attorney argued the court had no authority to modify the
division order under K.S.A. 2021 Supp. 60-260(b) (imposing one-
year time limit for filing a motion for relief from a judgment), and
that the original judgment giving Lisa a share of Jon's benefits had
expired under the dormancy statute, K.S.A. 2021 Supp. 60-
2403(a)(1) (stating that if a renewal affidavit is not filed or execu-
tion is not issued within five years from the date of the judgment's
entry, the judgment becomes dormant; noting after two years of
being dormant with no attempts to revive it, the judgment perma-
nently expires on request). The court asked Lisa's counsel if any-
thing had prevented Lisa from filing a qualified domestic relations
order for the military retirement benefits shortly after filing of the
divorce decree. Counsel answered, "No."
The court denied Lisa's motion. Its journal entry states:
"The basis for the Court's decision denying Petitioner's Motion for Clarifi-
cation is as follows:
"a. That under K.S.A. 60-260(b), the mistake that Petitioner's Motion is try-
ing to correct was not brought within one year of the Judgment being entered;
"b. The Decree was entered in [2007] and no action appears to have been
taken until April of 2021 when Petitioner filed her Motion to address the issue
raised in the Motion for Clarification;
"c. Petitioner did not submit a QDRO or take any enforcement steps until
2021, despite admissions on the record that there was nothing prohibiting her
from affirmatively taking steps to seek the same prior to this year;
"d. The Decree issued in [2007] is not an interlocutory order but was a final
judgment for all purposes;
"e. The Judgment was extinguished in 2011 and no action was taken to re-
vive the judgment; and
"f. The Court finds [In re Marriage of Larimore, 52 Kan. App. 2d 31, 362
P.3d 843 (2015), and In re Marriage of Porterfield, No. 118,479, 2019 WL
847671 (Kan. App. 2019) (unpublished opinion),] to be persuasive to the Court;
"g. The Court is obviously empathetic to Petitioner's current situation and
acknowledges that previously awarded property may no longer be available to
her; the Court recognizes the inherent injustice that this result may present. How-
ever, the Court simply lacks any legal basis, given the significant lapse in time
during which no action was taken, to amend, alter, or modify the prior judgment.
Moreover, litigants have an affirmative obligation to assert their rights, and a
party may not simply sit idly by and only years later seek to vindicate such rights.
There are counterbalancing interests of finality and certainty, as well as timely
adjudication that are involved in situations such as this. Thus, as a matter of law,
this Court simply cannot grant the requested relief, as much as it might wish at
this time."
484 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Shafer
Lisa appealed, and a Court of Appeals panel reversed. It held
the division order was not a final judgment subject to the dor-
mancy statute because "[t]he precise length of the parties' mar-
riage was not readily discernible from either the decree or the di-
vision of assets," so the order did not have a complete calculation
mechanism to apportion Jon's military retirement benefits. In re
Marriage of Shafer, No. 124,529, 2022 WL 4390875, at *1, 6
(Kan. App. 2022) (unpublished opinion). The panel remanded the
case to the district court "to consider the merits of Lisa's motion
for clarification." 2022 WL 4390875, at *1. We granted Jon's pe-
tition for review.
Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for
petitions for review of Court of Appeals decision); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Ap-
peals decisions upon petition for review).
DISCUSSION
This case presents three issues: (1) whether the property di-
vision is a final judgment subject to the dormancy statute, (2)
whether the relief statute applies, and (3) whether inactivity ren-
dered the judgment dormant. All three are questions of law involv-
ing statutory interpretation, which are subject to unlimited review.
Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469
(2015).
The judgment was final.
The panel held the division order was not final as "[t]he pre-
cise length of the parties' marriage was not readily discernible
from either the decree or the division of assets." In re Marriage of
Shafer, 2022 WL 4390875, at *1. We disagree. The district court's
2006 memorandum decision states, "The parties were married on
Feb. 1, 1992 in Louisville, KY." The Decree of Divorce is file-
stamped November 16, 2007, so this means the precise length of
this marriage was 15 years, 9 months, and 15 days—or 189.5
months.
K.S.A. 60-254(a) defines a "judgment" as "the final determi-
nation of the parties' rights in an action." See Honeycutt v. City of
Wichita, 251 Kan. 451, Syl. ¶ 1, 836 P.2d 1128 (1992) ("A final
VOL. 317 SUPREME COURT OF KANSAS 485
In re Marriage of Shafer
decision is one that finally decides and disposes of the entire mer-
its of the controversy and reserves no further questions or direc-
tions for the future or further action of the court."); Bandel v. Pet-
tibone, 211 Kan. 672, 677, 508 P.2d 487 (1973) ("It is a funda-
mental rule that a judgment should be complete and certain in it-
self, and that the form of the judgment should be such as to indi-
cate with reasonable clearness the decision which the court has
rendered, so that the parties may be able to ascertain the extent to
which their rights and obligations are fixed, and so that the judg-
ment is susceptible of enforcement in the manner provided by
law."). And the 2007 decree of divorce, which incorporates by ref-
erence the 2006 memorandum decision, provides all the infor-
mation needed to establish the precise length of Jon and Lisa's
marriage in months.
When read together, the two documents dispose of the division of
these marital assets. Lisa's motion to the district court did not require
the court to alter or amend its original property division. The panel
erred when it found "the division of Jon's military retirement pay con-
tained an incomplete calculation mechanism" as its rationale for hold-
ing "the order was not susceptible to enforcement and was therefore
not subject to dormancy." In re Marriage of Shafer, 2022 WL
4390875, at *1.
We hold the 2007 divorce decree, with its incorporation of the
2006 memorandum decision, constitutes a final judgment under
K.S.A. 60-254(a).
K.S.A. 2021 Supp. 60-260 is not applicable.
Lisa's motion for clarification is not part of the appellate record.
But the hearing transcript suggests she filed her motion under K.S.A.
2021 Supp. 60-260(b)(1). It provides:
"(b) Grounds for relief from a final judgment, order or proceeding. On motion and
just terms, the court may relieve a party or its legal representative from a final judgment,
order or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise or excusable neglect;
. . . .
"(c) Timing and effect of the motion. (1) Timing. A motion under subsection (b)
must be made within a reasonable time, and for reasons under paragraphs (b)(1), (2) and
(3) no more than one year after the entry of the judgment or order, or the date of the
proceeding." K.S.A. 2021 Supp. 60-260.
486 SUPREME COURT OF KANSAS VOL. 317
In re Marriage of Shafer
In any event, the district court cited K.S.A. 2021 Supp. 60-260(b)
as part of its ruling. But as discussed, Lisa's request to identify the
length of the marriage in months should not be deemed as asking for
any relief from the final division order, as her request does not demand
any substantive change in the final judgment. In other words, the relief
statute is inapplicable.
The judgment is subject to the dormancy statute.
Our determination that there was a final judgment here necessarily
leads us to conclude that same judgment is subject to the dormancy
statute, K.S.A. 2022 Supp. 60-2403. As we explained in In re Mar-
riage of Holliday, 317 Kan. 470, Syl. ¶ 1: "A district court's division
of a retirement account in a divorce proceeding constitutes a judgment
subject to dormancy under K.S.A. 2022 Supp. 60-2403 when the divi-
sion order qualifies under K.S.A. 60-254(a) as a final determination of
the parties' interests in the marital estate."
But we also held in Holliday that under the facts of that case in-
volving division of a spouse's benefits with the Kansas Public Employ-
ees Retirement System that K.S.A. 2022 Supp. 60-2403(c)'s tolling
provision prevented the divorce judgment from becoming dormant be-
cause benefits were not yet payable from that account. In re Marriage
of Holliday, 317 Kan. 470, Syl. ¶ 3. This holding contradicts the under-
lying assumption of the district court that Lisa was obligated under
K.S.A. 60-2403 to file appropriate paperwork with the Defense Finan-
cial Accounting Services office earlier than she did to avoid dormancy.
We hesitate, however, to apply our holding in Holliday concerning
subsection (c)'s tolling provisions with these military retirement ac-
counts on this record because that question was understandably not
briefed with us or addressed below. The discussion at oral argument
with counsel about similarities between these military benefits and
KPERS suggests Holliday resolves this case entirely, but we will leave
that to the district court on remand should the parties make it an issue.
We affirm the panel although our reasoning differs. The case is
remanded to the district court for further proceedings.
Judgment of the Court of Appeals reversing the district court is
affirmed. Judgment of the district court is reversed, and the case is re-
manded to the district court.
VOL. 317 SUPREME COURT OF KANSAS 487
State v. Bailey
No. 124,636
STATE OF KANSAS, Appellee, v. BRIAN C. BAILEY, Appellant.
___
SYLLABUS BY THE COURT
JURISDICTION—Supreme Court has Jurisdiction in Appeals from Judgments
Regarding Restitution in First-degree Murder Convictions. Under K.S.A.
60-2101(b) and K.S.A. 2022 Supp. 22-3601, the Kansas Supreme Court has
jurisdiction over appeals from district court judgments upholding or revers-
ing the validity of restitution orders imposed in first-degree murder convic-
tions.
Appeal from Johnson District Court; DANIEL VOKINS, magistrate judge.
Submitted without oral argument March 31, 2023. Opinion filed June 30, 2023.
Affirmed.
Richard P. Klein, of Lenexa, was on the brief for appellant.
Stephanie B. Poyer, of Butler & Associates P.A., of Topeka, was on the
brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Brian C. Bailey challenges the continuing validity
of the restitution imposed on him in connection with convictions
for felony murder and aggravated robbery.
Bailey was convicted in 1988 of one count of first-degree fel-
ony murder and four counts of aggravated robbery for events that
took place in December 1986. His convictions were affirmed in
State v. Bailey, 247 Kan. 330, 799 P.2d 977 (1990), cert. denied
500 U.S. 920 (1991). Following the vacating of his sentence and
a remand for resentencing in State v. Bailey, 251 Kan. 527, 531,
834 P.2d 1353 (1992), the district court reimposed a life sentence
for the felony murder and ordered that he serve three of his four
aggravated robbery convictions concurrently. In addition, the
court ordered restitution of $37,521.07.
Bailey has engaged in many years of litigation and appeals
relating to various aspects of conviction and sentence. In 2017,
this court once again considered an appeal from challenges Bailey
raised to his sentence and to the restitution order. State v. Bailey,
306 Kan. 393, 394 P.3d 831 (2017). In that case, Bailey argued
his restitution order was dormant under K.S.A. 60-2403 and 60-
488 SUPREME COURT OF KANSAS VOL. 317
State v. Bailey
2404 and thus void because no civil actions had been filed to keep
the claim alive. The court concluded that, under the law in effect
at the time he was sentenced, the district court lacked the authority
to impose both incarceration and simultaneous restitution. 306
Kan. at 397. The sentencing court could only specify the amount
Bailey should pay if restitution were later ordered as a condition
of conditional release. 306 Kan. at 397; see K.S.A. 1986 Supp. 21-
4603(2)(f). Accordingly, no enforceable restitution judgment ex-
isted against Bailey during the term of his incarceration, and, as a
result, he could not rely on dormancy statutes to void the restitu-
tion order. 306 Kan. at 397.
This court went on to conclude that the State had been
wrongly collecting restitution from Bailey's prison account since
2012 based on a clerical error entered into the county district court
computer system. The court remanded the case for a hearing to
find and correct any clerical error affecting collection of restitu-
tion from Bailey. Bailey, 306 Kan. at 398.
On remand, the district court indeed found a clerical error and
ordered it be corrected. The court determined that the Clerk of the
District Court made a mistake during conversion of district court
records from paper to digital records. Under K.S.A. 1986 Supp.
21-4603(2)(f), the court was precluded from collecting restitution
from Bailey while he was imprisoned. The court ordered that no
further collection of restitution take place while Bailey remained
in prison.
Bailey also requested that he be refunded $3,347.16 already
improperly collected from his account. The district court estab-
lished that the actual amount of $2,349.93 was collected and dis-
tributed to victims in the case and $535.89 remained in an open-
payables account under the clerk's control. Looking to United
States v. Hayes, 385 F.3d 1226 (9th Cir. 2004), the court reasoned
that funds already distributed to victims could not be recouped be-
cause they were no longer under the control of the government,
and only the $535.89 could be ordered returned to Bailey. In ad-
dition, the court noted that the return of some of the funds was
barred by the K.S.A. 60-513(a) statute of limitations.
VOL. 317 SUPREME COURT OF KANSAS 489
State v. Bailey
Bailey appealed from that decision. In that appeal, this court
observed that K.S.A. 2020 Supp. 22-3504(b), relating to correc-
tion of sentences, did not authorize a court to do anything more
than correct the clerical order; there was no statutory authority for
refunding improperly collected funds. State v. Bailey, 313 Kan.
895, 897, 491 P.3d 1256 (2021). The court then noted that Bailey
had failed to brief adequately an argument that he had some stat-
utory or constitutional basis for demanding a refund of funds al-
ready distributed. 313 Kan. at 897-900. The court refused to con-
sider his claim on appeal and affirmed the district court.
While that appeal was pending, on April 30, 2021, Bailey filed
a "Motion to Void Restitution, Reimbursements for Indigent De-
fense Services and Court Cost and Fees and Witness Fees." Bailey
repeated his argument that the restitution order was dormant and
therefore void because no civil actions had been filed to keep the
claim alive. The district court relied on Bailey, 306 Kan. at 393,
to deny the motion. In doing so, the court cited to the law-of-the-
case doctrine and declined to reopen the matter already decided
by this court.
Bailey took a timely appeal to this court.
As a threshold question, we directed the parties to include in
their briefing a discussion of certain jurisdictional matters. In par-
ticular, we asked the parties to address whether this court is the
appropriate venue for this appeal. We conclude that it is.
Instead of appealing to the Court of Appeals, Bailey took his
appeal directly to the Kansas Supreme Court under K.S.A. 60-
2101(b), which states that this court has jurisdiction over appeals
governed by K.S.A. 2022 Supp. 22-3601. The plain language of
K.S.A. 2022 Supp. 22-3601(b) states that "[a]ny appeal permitted
to be taken from a district court's final judgment in a criminal case
shall be taken to the supreme court" in cases of life sentences and
certain off-grid convictions.
This court has held that "[r]estitution is part of a criminal de-
fendant's sentence." State v. Northern., 304 Kan. 860, 862, 375
P.3d 363 (2016); see also State v. Hall, 298 Kan. 978, 983, 319
P.3d 506 (2014) ("Restitution constitutes part of a criminal de-
fendant's sentence."); State v. McDaniel, 292 Kan. 443, 446, 254
490 SUPREME COURT OF KANSAS VOL. 317
State v. Bailey
P.3d 534 (2011) (same). This is not an action challenging a gar-
nishment or a civil order. A criminal restitution order itself is not
a legal obligation equivalent to a civil judgment. See State v.
Arnett, 314 Kan. 183, 194, 496 P.3d 928 (2021), cert. denied 142
S. Ct. 2868 (2022).
Because restitution is part of Bailey's sentence, challenges to
the ongoing validity of that part of the sentence properly lie with
this court. See, e.g., State v. Gilbert, 299 Kan. 797, 800, 326 P.3d
1060 (2014) (jurisdiction over appeal of motion to correct illegal
sentence lies with court having jurisdiction to hear original appeal
under K.S.A. 2013 Supp. 22-3601[b][3]).
This conclusion is consistent with other cases in which this
court has assumed jurisdiction over matters directly relating to the
conviction and sentence in first-degree murder convictions, even
when the appellants have invoked the civil code as authority for
their actions. See, e.g., State v. Kingsley, 299 Kan. 896, 326 P.3d
1083 (2014) (Supreme Court considered direct appeal from denial
of motion under K.S.A. 60-260[b] for relief from judgment); State
v. Mitchell, 297 Kan. 118, 298 P.3d 349 (2013) (same); State v.
Robinson, 309 Kan. 159, 432 P.3d 75 (2019) (court assumed ju-
risdiction to decide whether civil code authorizes postconviction
discovery in a criminal case); Bailey, 313 Kan. at 895.
This court therefore has jurisdiction over Bailey's appeal. He
is subject to life sentences, and his off-grid convictions lie within
the statutory scope for direct appeals to this court. This is "any
appeal"; it is from "a district court's final judgment"; and it is the
result of pleadings filed under Bailey's criminal case number. It
meets the statutory conditions for an appeal to this court under
K.S.A. 2022 Supp. 22-3601(b).
Bailey argues the dormancy statutes render his restitution
judgment void because no renewal affidavit and no motion to re-
vive judgment have been filed. In Bailey, 306 Kan. at 397, this
court explicitly held that "no enforceable restitution judgment ex-
ists against Bailey, and the dormancy statutes do not apply." See
also Arnett, 314 Kan. at 194 ("unlike most other civil judgments,
a modern judgment for restitution never becomes dormant"); State
v. Alderson, 299 Kan 148, 151, 322 P.3d 364 (2014) (restitution is
VOL. 317 SUPREME COURT OF KANSAS 491
State v. Bailey
not enforceable judgment at time of sentencing; judgment cannot
become dormant).
The district court relied on the law-of-the-case doctrine when
it denied Bailey's claim. The law-of-the-case doctrine prevents a
party from relitigating an issue already decided on appeal in suc-
cessive stages of the same proceeding. State v. Parry, 305 Kan.
1189, Syl. ¶ 1, 390 P.3d 879 (2017). Courts adhere to the law of
the case "'"to avoid indefinite relitigation of the same issue, to ob-
tain consistent results in the same litigation, to afford one oppor-
tunity for argument and decision of the matter at issue, and to as-
sure the obedience of lower courts to the decisions of appellate
courts. [Citations omitted.]"'" 305 Kan. at 1194-95.
One circumstance under which the law-of-the-case doctrine
comes into play is when a second appeal is brought in the same
case. In that instance, the first decision is generally the settled law
of the case on all questions involved in the first appeal, and "re-
consideration will not normally be given to those questions."
Parry, 305 Kan. at 1195. An argument once made to and resolved
by an appellate court becomes "the law" in that case and generally
cannot be challenged in a second appeal. State v. Collier, 263 Kan.
629, Syl. ¶ 3, 952 P.2d 1326 (1998).
Bailey offers no new arguments or authority demonstrating
that the State is required to renew its restitution judgments for such
judgments to become enforceable upon release from incarcera-
tion. Bailey, 313 Kan. at 895, and Bailey, 306 Kan. at 393, are the
law of this case, and the judgment of the district court ruling
against Bailey based on the law-of-the-case doctrine is accord-
ingly affirmed.
STANDRIDGE, J., not participating.
492 SUPREME COURT OF KANSAS VOL. 317
In re Marvin S. Robinson Charitable Trust
No. 126,125
In the Matter of the MARVIN S. ROBINSON CHARITABLE TRUST,
dated May
22, 1985.
___
SYLLABUS BY THE COURT
1. TRUSTS—Charitable Trust— Supreme Court has Subject Matter Jurisdic-
tion to Review District Court Order Modifying Charitable Trust. The Kan-
sas Supreme Court has subject matter jurisdiction to review an uncontested
district court order retroactively modifying a charitable trust to decide
whether the district court's order should be binding on federal tax authorities
under Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L.
Ed. 2d 886 (1967).
2. COURTS—Appellate Review of Cases Decided on Documents and Stipu-
lated Facts. Appellate courts need not defer to the district court when re-
viewing cases decided on documents and stipulated facts.
Appeal from Riley District Court; JOHN F. BOSCH, judge. Submitted without
oral argument May 18, 2023. Opinion filed June 30, 2023. Affirmed.
Thomas M. Ruane, of Polsinelli PC, of Kansas City, Missouri, and Stephen
J. Bahr, of the same firm, were on the brief for appellants Dirk Daveline, Matt
Crocker, Wayne Sloan, Jim Gordon, Neal Helmick, and Lance White, Co-Trus-
tees.
No other parties appear.
The opinion of the court was delivered by
WALL, J.: This case involving the modification of a charitable
trust is the latest in a line of appeals we have decided under Com-
missioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L.
Ed. 2d 886 (1967). In Bosch, the United States Supreme Court
held that the Internal Revenue Service (IRS) and federal courts are
not bound by decisions of lower state courts on issues of state law,
but they will defer to decisions of a state's highest court.
Here, the district court granted the uncontested petition of the
trustees of the Marvin S. Robinson Charitable Trust to retroac-
tively modify the trust's terms to maintain its status as a tax-ex-
empt "supporting organization" under the federal tax code. But
under Bosch, orders on such matters are binding on federal tax
VOL. 317 SUPREME COURT OF KANSAS 493
In re Marvin S. Robinson Charitable Trust
authorities only if they emanate from our court. See In re Com-
mon-Law Marriage of Heidkamp and Ritter, 317 Kan. 125, 127-
328, 526 P.3d 669 (2023). We therefore agreed to review the dis-
trict court's order. For the reasons set forth in this opinion, we af-
firm the judgment of the district court.
FACTS AND PROCEDURAL BACKGROUND
The facts are undisputed. Before his death, longtime Riley
County resident Marvin Robinson founded a charitable trust in his
name to support local public charities like the Jewish Congrega-
tion of Manhattan and the Kansas State University Foundation.
The IRS issued a determination letter classifying the trust as a
"supporting organization" rather than a private foundation, mean-
ing that it was a tax-exempt entity organized and operated "exclu-
sively for the benefit of, to perform the functions of, or to carry
out the purposes of" one or more public charities. 26 U.S.C.
§ 509(a)(3)(A) (2018). That classification was important because
Robinson intended to fund the trust using his substantial stock
ownership in his family's steel business, SPS Companies. And
classification as a private foundation would have subjected the
trust to rules limiting the amount of SPS stock the trust could hold.
See 26 U.S.C. § 4943(c)(2) (2018).
But in 2006, Congress altered the rules governing supporting
organizations. See Pension Protection Act of 2006, Pub. L. No.
109-280, 120 Stat. 424. Most relevant here, it extended the pri-
vate-foundation limits on stock holdings to certain types of sup-
porting organizations that were not (in tax lingo) "functionally in-
tegrated Type III supporting organizations." Pension Protection
Act § 1243 (amending 26 U.S.C. § 4943). Under the IRS regula-
tions implementing those amendments, organizations had until
January 2015 to comply with these new rules. See 77 Fed. Reg.
76382, 76392 (Dec. 28, 2012) (providing for transitional period
until "first day of the organization's second taxable year beginning
after December 28, 2012").
Then in 2021, the trustees realized that Robinson's trust might
qualify as the type of supporting organization subject to the pri-
vate-foundation limits on stock holdings. They decided to amend
the trust agreement to explicitly satisfy the requirements of (again,
494 SUPREME COURT OF KANSAS VOL. 317
In re Marvin S. Robinson Charitable Trust
in tax lingo) Type I supporting organizations, which are not typi-
cally subject to those limits. See 26 U.S.C. § 4943(f). For exam-
ple, the amended trust required a majority of the six trustees to be
appointed by public charities that the trust supports. See 26 C.F.R.
§ 1.509(a)-4(g)(1)(i) (2022).
In January 2023, the trustees filed an uncontested petition to
retroactively modify the trust under the Kansas Uniform Trust
Code. The trustees asked the district court to recognize the amend-
ment as retroactive to December 31, 2014, just before the deadline
to comply with the new supporting-organization requirements.
After reviewing the petition and the uncontroverted evidence, the
court adopted the trust's proposed factual findings and legal con-
clusions. The court determined that it could retroactively modify
the trust (1) to enable the trustees to administer the trust in accord-
ance with Robinson's charitable intention, (2) to prevent the trust
from being classified as a private foundation, and (3) to preserve
the trust's assets for the intended beneficiaries.
The trustees appealed from that favorable ruling to the Court
of Appeals, and we granted the trustees' motion to transfer the case
to our court to render a binding opinion under Bosch. See K.S.A.
2022 Supp. 20-3017 (upon motion of a party, Kansas Supreme
Court may transfer to itself a case from the Kansas Court of Ap-
peals).
Ordinarily, appellate courts do not have jurisdiction to review
cases that lack adverse parties. See In re Estate of Keller, 273 Kan.
981, 985-86, 46 P.3d 1135 (2002). But "[t]his court has jurisdic-
tion to consider this uncontested appeal because of the Bosch re-
quirement that the highest state court in Kansas must affirm a rul-
ing in this kind of case in order to have legal effect on federal
courts and agencies." In re Marriage of Heidkamp and Ritter, 317
Kan. at 128.
ANALYSIS
We do not defer to the district court when reviewing cases
that, like this one, were decided on documents and stipulated facts.
See In re Harris Testamentary Trust, 275 Kan. 946, 951, 69 P.3d
1109 (2003). The question before us is a legal one: whether Kan-
sas law supports the district court's modification of the trust. See
VOL. 317 SUPREME COURT OF KANSAS 495
In re Marvin S. Robinson Charitable Trust
275 Kan. at 951; In re Cohen, No. 101,187, 2009 WL 862463, at
* 4 (Kan. 2009) (unpublished opinion). We hold that it does.
The trustees cited—and the district court relied on—three
statutes of the Kansas Uniform Trust Code: K.S.A. 58a-412,
K.S.A. 58a-413, and K.S.A. 58a-416. Under the first statute,
K.S.A. 58a-412(b), a court may "modify the administrative terms
of a trust if continuation of the trust on its existing terms would be
impracticable or wasteful or impair the trust's administration." The
second statute, K.S.A. 58a-413(a), codifies the common-law doc-
trine of cy pres. It provides that "[i]f a charitable trust is or be-
comes . . . impracticable of fulfillment" and the settlor "mani-
fested a general intention to devote the property to charity," then
a court "may order an administration of the trust" that is "as nearly
as possible to fulfill the manifested general charitable intention of
the settlor." Finally, under the third statute, K.S.A. 58a-416, "the
court may modify the terms of a trust in a manner that is not con-
trary to the settlor's probable intention" in order "[t]o achieve the
settlor's tax objectives." Importantly, this statute permits the court
to "provide that the modification has retroactive effect."
We agree with the district court that this final statute, K.S.A.
58a-416, authorizes the retroactive modification of Robinson's
trust. There is no question that Robinson did not wish the trust to
be classified as a private foundation under the federal tax code
because that classification would have prevented the trust from
holding substantial stock in SPS Companies. The uncontroverted
affidavits presented to the district court make that clear. As does
a provision of the trust agreement allowing the trustees to "change
or amend [the] trust agreement to meet any requirements of the
Internal Revenue Code so as to retain the tax exempt status of this
trust, and to obtain recognition of exempt status as an organization
which is not a private foundation and to retain this status."
But the trust's failure to meet various Pension Protection Act
requirements by the end of 2014 threatened to subject the trust to
private-foundation limits on stock holdings, contrary to Robin-
son's clear tax objectives. The amendments to the trust agreement
avoid that danger by bringing the trust explicitly in line with the
496 SUPREME COURT OF KANSAS VOL. 317
In re Marvin S. Robinson Charitable Trust
requirements of a Type I supporting organization that is not sub-
ject to those limits. These facts satisfy the requirements to retro-
actively modify a charitable trust under K.S.A. 58a-416.
Because that statute authorizes the modification of the trust,
we need not decide whether modification was also proper under
the other two statutes that the trustees and district court cited. And
in fact, there is good reason not to decide those issues here. Unlike
K.S.A. 58a-416, neither K.S.A. 58a-412 nor K.S.A. 58a-413 ex-
pressly permit a court to modify a trust retroactively. The absence
of that express language may suggest that, in contrast to K.S.A.
58a-416, K.S.A. 58a-412 and K.S.A. 58a-413 permit prospective
modification only. Moreover, it is unclear that K.S.A. 58a-413
even applies to the facts here. That statute—which implements but
does not expand the common-law doctrine of cy pres—"permits a
court to implement a testator's intent and save a gift to charity by
substituting beneficiaries when the named charitable beneficiary
is unable to take the gift." In re Estate of Crawshaw, 249 Kan.
388, Syl. ¶¶ 1, 4, 819 P.2d 613 (1991). And here, the point of the
trust modifications is to maintain the preferred tax and organiza-
tional status, not to select a new beneficiary. Because this is an
uncontested appeal, none of those questions have been put to the
adversarial process. And in the absence of briefing and argument,
we decline to resolve those issues here.
We affirm the order of the district court making the trust mod-
ifications effective as of December 31, 2014, under K.S.A. 58a-
416.
Judgment of the district court is affirmed.
